Imágenes de páginas

without prejudice to the case of a mere trespass. Held, that the interest which passed under the tj. However, in Cowper v. Baker (17 Ves. 128), in 1810, pointment, did, within the meaning of the Act, aris the same Judge granted an injunction to restrain a under an instrument which was executed and came iat mere trespasser from committing what the Court con operation after the passing of the Act. sidered to be irremediable mischief.

Fletcher v. Moore, 26 L. J. Ch. 532, distinguished, Fourthly.-- Where the plaintiff in possession sought Plummer v. Whitely, Johns. 585, approved of. to restrain the defendant out of possession, the de. fendant claiming title. This was the case here. The

This was a petition presented by the Equitable earliest case was one before Lord Camden, cited in Reversionary Interest Society to have William WardMogg v. Mogg (2 Dick. 670), in which an injunction roper's share, under an appointment made by Ms. was granted to restrain tenants of a manor from cutting Geldart

, paid over to the society as his assignee, and trees. In Robinson v. Lord Byron (1 Br. C. C. 588), in to have the other shares under the same appointment 1785, an injunction was granted to restrain the owner

paid to the persons respectively entitled to them. It of a higher part of a stream from interfering with the

now came on for further consideration on the Chief water flowing to the plaintiff's mill.

The only case in Clerk's certificate. which an injunction of this kind had been refused,

Under a settlement made in May, 1821, Mrs. when the damage was “irreparable,” was Smith v.

Geldart had, in an event which happened, power to Collyer (8 Ves. 89), in 1803, before Lord Eldon ; but appoint by will a sum of 60001., subject to successiva Sir J. L. Knight Bruce, referring to this case in Haigh life interests enjoyed by herself and her husband. By v. Jagger, said, he was not satisfied that the Court her will, dated in 1828, and made in due exercise of would not now grant such an injunction. Lord Eldon the power, she appointed the income of the fund, in granted an injunction in Grey v. Duke of Northumber. the events which happened, to Charlotte Cutfield for life, land (13 Ves. 236 ; 17 Ves. 281), in 1806, to restrain with remainder as to the corpus equally among all the the lord of a manor from opening a mine on a copy.

children of Mrs. Wardroper, of whom William Wardholder's land, and in Kinder v. Jones (17 Ves. 110), in roper was one. 1810, to restrain the lord of a manor from cutting

The testatrix died in 1838, and thereupon her will trees.

came into operation. Her husband died in 1839. The result of the cases seemed to be this :-Where a Charlotte Cutfield survived the testatrix's husband, plaintiff out of possession, not having priority of title and died in 1863. with the defendant, sought to restrain the defendant

The question now before the Court was, whether or from acts of spoliation, the Court would only grant not, under the Apportionment Act, 4 & 5 Will. 4, an injunction where the acts were of a flagrant kind c. 22, there ought to be an apportionment of the causing great damage to the property. Again, where dividends which became due at the end of the half-year the plaintiff in possession sought to restrain one who in which Charlotte Cutfield died. claimed no title, the leaning of the Court was to refuse the injunction, and to leave the plaintiff to his

Baily, Q.C., and B. B. Rogers, for the petitioners. remedy at law. But where, the plaintiff in possession Bevir, G. L. Russell, and Horton Smith, for the sought to restrain one who claimed title, the leaning representatives of other children of Mrs. Wardroper. of the Court was to grant the injunction when the spoliation was irremediable, that is, when there was a

Osler, for persons claiming under the original settle. destruction of part of the inheritance.

ment, in default of appointment, claimed an apportion.

ment in favour of the personal representatives of In the present case the defendant claimed as heir

Charlotte Cutfield. at-law of the testator, and the acts threatened, viz.,

The following cases were cited and discussed, cutting trees and turf, were of the kind termed irremediable, and therefore the injunction, so far as it

Re Markby, 4 My. & Cr. 484 ; restrained the defendaut from cutting trees and turf,

Lock v. De Burgh, 4 De G. & Sm. 470 ; must be made perpetual.

Fletcher v. Moore, 26 L. J. Ch. 530 ; 8. c. 5 W. R.

421 ; 3 Jur. (N. S.) 458;

Plummer v. Whitely, Johns. 585. Kindersley, V.-C.

} WARDROPER v. Cutfield. 25 JAN. 1864. 22, 25 Jan. 1864.

KINDERSLEY, V.-C., said, that the question depended Apportionment-4 & 5 Will. 4, c. 22-Appoint- on the wording of the 2nd section of the Apportion

ment since the Act under power created before ment Act, which was one of the most, if not itself the the Act.

most ill-drawn of all the many ill-drawn statutes. In

Plummer v. Whiteley (loc. cit.), Wood, V.-C., had drawn A power of appointment created by an instrument a distinction, which his Honour thought sound and just, executed before the passing of the Apportionment Act, between two classes of subjects included in this secon was exercised

11 which came into operation after section,—viz., between rents-service, which the learne the Act:

Vice-Chancellor held would be apportionable

, if only

[ocr errors]
[ocr errors]

the lease reserving them were subsequent to the Act, the established doctrine, that an instrument under an ani rents-charge and other payments coming due at appointment took effect as though it were under the fi:ed periods, which would not be apportionable un. instrument creating the power ; but he must hold that les the instrument creating the life-interest itself the instrument to be looked to, was that under were executed since the Act. The question in Fletcher which the interest arose directly. His Honour felt

Moore (loc. cit.), related to the half-year's rent some hesitation, but, on the whole, this appeared to current the period when the tenant for life attained be the meaning of the Act, and an apportionment of twenty-one, and not to the rent for the half-year in the current dividend must be ordered. vhich he died. Consequently, the Apportionment Act, upon which that case was argued, had really no reference to it; and his Honour was still of opinion

Stuart, V.-C., tiat his decision was right. But some of the reasoning

COPPARD V, ALLEN. used by him on that occasion he was now convinced could not be supported. He had assumed too hastily

Inspector-Wilful Default-Parties. that the ground on which the learned Judge, who decided Lock v. De Burgh (loc. cit.), had based his

Where a deed has been executed for the purpose of judgment was, that in construing the second section, allowing a creditor to wind up an estate under inspecthe same rule for ascertaining if a case fell under torship, it is incumbent upon the inspectors to take active the Act, would apply both to rents-service and also steps in the matter, and to be prepared to give a full to all the other payments referred to in that section. account of the money received in respect of the estate. But the decision in Lock v. De Burgh was in unison

An inspector who permitted twelve years to clapse with the division of the section into two parts, as

without any dividend being made among the general adopted in Plummer v. Whitely; and although no creditors, and without any accounts being rendered to reasons were given in the short report of the judg. them, was charged for wilful default, and ordered to ment, the case may have really been decided upon that pay costs, although the specific acts of default alleged very principle. His Honour, however, was not of against and admitted by him, were of no great magniopinion that Lord Cottenham, from his reasoning in tude. Re Markby (loc. cit.), could be supposed to have appre

A B and C were three inspectors appointed by a hended this division of the section into two parts. The deed executed in 1851. In 1854 A went out of the present case fell under the latter of the two parts, and jurisdiction, and had remained so ever since. In 1861 the question was, whether the dividends on the 60001. B died. In 1862 the bill was filed against C. An had been made payable to Charlotte Cutfield under an objection for want of parties was overruled. instrument which was executed and came into operation This was a suit instituted by the plaintiff on behalf after or before the passing of the Act. The Act, when of himself and all other the unsatisfied creditors of the it spoke of a modus as of a payment coming due under defendant R. Gates, against the defendant A. Allen, an instrument, referred, not to the instrument which one of three inspectors under a deed of inspectorship, created the modus (for there could be no such instru- dated the 31st of August, 1851, and executed by ment), but to that under which the interests of some Gates. parties in the modus were created. So, in the present The object of the deed was to allow Gates, during the case, the instrument, the date of which was important, year subsequent to the date of it, to wind up the busiwas that by which the interest of Charlotte Cutfield her- nesses of brewer and farmer, which he had previously self in the fund, which was the subject of the settlement carried on at Horsham, Sussex, and to collect the debts of 1821, was created, or under which it arose. There owing to him under the inspectorship of the defendant was no authority exactly touching the case. Her inte. Allen and F. King and J. Rhodes. It contained coverest might perhaps be said to have been created by one nants by Gates to use his best endeavours to wind up his only of the two instruments (viz., the settlement and affairs, and to pay his creditors by dividends of 28. 6d. the will), but it arose under both ; for without both, in the pound, and to render accounts to the three she would have had no interest. The words of the inspectors, and further that if, in the opinion of the Act were too ambiguous to settle this doubt; and three inspectors, the process of such winding-up should under these circumstances the intention of the Act not be satisfactory and beneficial to the estate, he might fairly be appealed to. Now, when his Honour would convey and assign all his property to them considered that the intention, as appeared from the upon trust to sell and pay the creditors. preamble, was to cure what might be called the mis

At a meeting of the creditors, held about the time chief of the old law, viz., that persons (and their repres of the execution of the deed, it appeared that Gates's sentatives) whose income might be wholly or principally debts were about 35,0001. and his assets 25,0001. derived from some periodical payment, might, by the J. Rhodes left this country in 1854, and had ever determination of the life-interest before the period of since continued out of the jurisdiction of the Court. payment, be deprived of the means to satisfy just F. King died in 1861. demands, he could not apply to cases upon this statute The bill alleged that the three inspectors and Gates ha carried on the businesses for some time, had sold and the personal representatives of F. King were not large parts of the property, had paid mortgage-debts parties. to a considerable amount, and had also retained considerable balances. It charged that, through wilful

Brooksbank, for the defendant Gates. neglect, considerable debts owing to the estate had

STUART, V.-C., said, that the argument for the lo been lost thereto; and that the defendant Allen had fendant Allen, that under the deed he had no active refused to render proper accounts. No dividend had duties, was not, in his opinion, tenable. Moreova, ever been made among the general creditors.

the charges made by him for travelling expenses, The defendant Allen, by his answer, stated that the showed that he had taken some part. And it was estate had been principally managed by Gates under clear that the estate had not been properly would the control of F. King (who was a creditor to a large up with the diligence and care proper to the cas; amount) and his brother W. King who had acted as Although the Court was bound to treat persons ezsolicitor to the inspectors. He set forth in a schedule trusted with duties of this kind with reasonable indu?the sums which he had received and paid, showing gence, still the Court required reasonable diligence ca that there was a balance of only 1511. 14s. Bd. in his their part. As to the argument founded on the fact hands belonging to the general creditors. He claimed that the property never had been conveyed and as a judgment creditor for a debt of 1,1001. to retain assigned to the inspectors, he thought that of 10 certain sums of 3081. 163. 11d. and 2811. 198. bd., weight, inasmuch as the property was coinpletely in which he had received out of the proceeds of the sale their dominion. It was sufficient in cases like the of some real estate. He stated his inability to render present, in order to charge trustees for wilful default any other more copious accounts, as the books of account to prove one instance of negligence and he thought belonging to the estate were in the hands of W. King, that the fact that 1501. had remained for nine years who had refused to deliver them up.

in the defendant Allen's hands, as was admitted by It appeared from the evidence of an accountant, to him, coupled with the negligence, in reference to the whom the affairs of the estate hail been referred, that price of the furniture, was sufficient to warrant : the defendant Allen had received various sums, alto- decree, with costs up to the hearing, against the gether amounting to 8851. 23. 2d., and that he had

defendant Allen. given to such accountant some rather confused ac

With respect to the objection as to parties, he counts, in which he charged the estate with about thought that it was not valid, as it was constantly the 1001. for travelling and other expenses.

practice of the Court to allow a cestui-que-trust to sae It also appeared from the evidence, that the de.

one trustee for a breach of trust in the absence of the fendant Gates had been allowed to retain possession of others. Rhodes was out of the jurisdiction ; this was his furniture, valued at 1791. 128. 7d., but had ne

a sufficient reason for not making him a party. glected to pay that sum. This sum he, in his answer, King was dead, and there was no reason for making now professed himself willing to pay.

his representatives parties. The bill prayed that the estate might be administered by the Court, and accounts taken, and that

Stuart, V.-C. defendant Allen might be charged for wilful default,

} Williams v. HEADLAND.

23 Jan. 1864. and ordered to pay costs.

Executor-Indemnity-Shares in Vines. Malins, Q.C., and E. E. Kay, for the plaintiff, contended, that having regard to the great lapse of time, In an administration suit instituted by the residuary and the other circumstances of the case, the plaintiff lcgatee, the executors asked to be allowed to retain ar and the other creditors were entitled to a decree as indemnity fund out of the residuary property to meet prayed by the bill.

the future claims in respect of calls on certain sharcs in

a mine, which had been sold for a nominal price, bred Bacon, Q.C., and Rowcliffe contended that the de

had not been registered in the name of the purchaser:fendant Allen was not liable for more than the

Held, that the order of the Court was a suficient in amounts which he had actually received. He was not a trustee, and under the deed he had no active demnity to the executors, and all that was nec_397TY duties to perform, the primary object of the deed

was that the residuary legatec should undertake to being to allow Gates time to wind up the estate

meet any such liability. himself. The covenant to convey and assign the estate This was an ordinary administration suit, the plainto the inspectors as trustees, was one which they could tiff being residuary legatee of the testator. not have enforced, and which was never acted upon. The only question was, whether the executors were No wilful default had been committed by Allen ; the at liberty to retain a sum of money out of the residuary acts alleged against him were of no importance, as property to meet any calls that might be made ou 1501. was not sufficient to divide annongst the cre- certain shares in a mine in Cornwall (part of the tes ditors, and the price of the furniture was not lost. tator's property), which they had sold for 25. 6d. cache They also argued that the suit was defective, as Rhodes but which had not been registered in the name of the

[ocr errors]

purchaser, such liability only existing until the Acts, have no priority in the administration of assets trarsfer could be properly made.

over simple contract debts.

The rule is the same with regard to a County Court Malins, Q.C., and Melville, asked that the executors

judgment. might be ordered to pay over the balance in their hands without retaining any indemnity fund,

This suit was an administration suit, and the Waller v. Barrelt, 24 Beav. 413;

question now raised (by summons adjourned from Bennett v. Lytton, 2 J. & H. 155.

Chambers) was, whether two creditors who had

obtained judgment against the intestate, but had not Bacon, Q.C., and Toulmin, for the executors, con

registered them as required by 1 & 2 Vict. c. 110, and taded that, according to the established practice of 23 & 24 Vict. c. 38, had any priority over simple conthe Court, they were entitled to retain a sufficient fund

tract creditors. One of the judgments had been to indemnify them against the claims alluded to obtained in the Exchequer ; the other was a County Until Lord St. Leonards' Act (22 & 23 Vict. c. 35) Court judgment, and had not been removed to a was passed, executors were entitled to retain such a

superior Court. fund to indemnify themselves against the liabilities on covenants in leases; and the present was a perfectly

H. F. Shebbeare, for a simple contract creditor, analogous case, but not provided for by that or any against the claim of tho judgment creditors. other statute.

Pole, for the administratrix on the same side, cited,

Fuller v. Redman, 26 Beav. 600 ; STUART, V.-C., said that Vice-Chancellor Wood, in

23 & 24 Vict. c. 38; the case cited (Bennett v. Lytton), took care to found

Hickey v. Hayter, 6 T. R. 384 ; his order upon the broadest ground. It was difficult

Steel v. Rorke, 1 Bos. & P. 307 ; to imagine anything more dangerous than to throw

Hall v. Tapper, 3 B. & A. 655 ; any doubt upon the indemnity afforded by the Court

Landon v. Ferguson, 3 Russ. 349. to executors. If the Conrt ordered executors to pay

As to the County Court judginent, the 1 & 2 Vict. any sum, or do anything, that order was itself an in

c. 110, s. 22, provided for the removal of judgments demnity to them.

of inferior Courts into the superior Courts, and by 18 This Court, however, was careful to guard the rights & 19 Vict. c. 15, s. 7, judgments so removed, when of persons not before it, and the old practice of the registered, had the same effect as if originally entered Court was, that every legatee should enter into recog. in the superior Court. nisances to refund in case of a claim being substantiated against the estate, but, as Lord Cottenham remarked Dryden, for the Exchequer creditor, contended that in his judgment in March v. Russell (3 My. & Craig, the cases cited did not apply to administration. The 32), that practice had been gradually done away with. object of the new Act was merely to protect executors He agreed with the judgment given by the Master of from outstanding claims, but not to vary the practice the Rolls in Waller v. Barrett, that executors were in administration, by which all debts of record were indemnified by the order of the Court, for what was

allowed priority. done under such order in administration suits. In

Bilton, for the County Court creditor, on the same the present case it would be a great injustice to the side.--In any case, the County Court judgment could residuary legatee if a gross sum should be set apart for

never have been docketed, and the Act did not apply the purpose of indemnifying the executors, and they

to it. were not entitled to ask it. If the residuary legatce undertook to answer any claim that might be made, Wood, V.-C., said that the question seemed settled, that would be quite sufficient to protect the mining both at law and in equity. As the law stood, under company, and the executors would be sufficiently 4 & 5 Will. & Mary, c. 20, it might have been supindemnified by the order from any personal liability. posed that notice given to the executor would be

sufficient to secure the rights of creditors under outstanding judgments, but Steel v. Rorke (loc. cit.)

decided it was not so: and the same case also showed Wood, V.-C.

that the protection afforded by the Act was not WALTER V. TURNER. 21 JAN. 1864. s

only for the benefit of executors, but was also

available as between creditors, for otherwise the plea Administration Registration of Judgment would have been good: in fact, Heath, J., in deliver.

Debts-County Court Judgment—1 & 2 Vict. ing judgment, expressly said that the statute was to c. 110, s. 22–18 Vict. c. 15, s. 7—23 & 24 protect creditors. Then in equity the same doctrine had Vict. c. 38, s. 3.

been held in Landon v. Ferguson (loc. cit.), which de

cided that a judgment not docketed had no preference Under 23 & 24 Vict. c. 38, judgment debts not regis- | against simple contract debts. In consequence of the tered as required by 1 & 2 Vict. c. 110, and subsequent decision in Puller v. Redman (loc. cit.), the Act 23 & 24


Vict. c. 38, was passed, and thereby the law was the walls would be to cause the foreshore in front of restored to the position in which it stood when regu. the plaintiffs' land to be silted up, and prevent the lated by the statute of William and Mary. The judg. access of the sea thereto. ment in the Exchequer, therefore, would have no An information and bill was filed, praying that it preference against simple contract debts. As to the might be declared that the execution of the works in County Court judgment, it might have been brought the bill referred to would be in contravention of the up to a superior Court and then registered. This had above-mentioned Act, and would be a public injury not been done, and the judgment could, therefore, and nuisance; that it might also be declared that the have no preference.

plaintiffs were entitled, as against the defendants, to Note.—See 19 & 20 Vict. c. 108, s. 49, which ap. front of the land demised to them, and that the de

free access from the sea in all directions to the southern pears to limit the power of removing a County Court

fendants might be restrained by injunction from corjudgment to the case where there are no goods or chattels which can be conveniently taken to satisfy

structing the works mentioned in the bill, and also from such judgment. 1 & 2 Vict. c. 110, s. 22, appears to doing, or causing, or permitting to be done, or to apply only to Courts then in existence.

remain, any act, matter, or thing whatsoever, whereby or by means or in consequence whereof the access from

the sea in any direction to the plaintiffs' land, or the Wood, V.-C. } ATTORNEY-GENERAL r. BOYLE.

use and enjoyment by them of the foreshore in front of 22 Jan. 1864.

in the neighbourhood of their land, or the rights and Practice - Declaratory Decree Injunction- privileges of the plaintiffs in respect of the premises

demised to them, or of the public in respect of the Application io Parliament.

foreshore, might be prejudiced or interfered with. The Court of Chancery can only decide legal questions

The defendants, by their answer, denied that the so far as is necessary for the exercise of its own jurisdic. proposed works would interfere with the rights of the tion, and therefore will not make a decree declaratory of Messrs. Batchelor or of the public. It was arranged rights under a legal instrument.

that none of the works should be carried out till the Where a bill was filed to restrain the defendants from

cause was heard. executing works which would interfere with certain

Before the hearing, the trustees gave notice to the rights of the plaintiffs under a lease to them by the de- plaintiffs of their intention to apply to Parliament fendants, and the defendants at the hearing submitted to

for a private Act enabling them to execute both the an injunction restraining them from executing the works works in question, and also others of a more extensive mentioned in the bill:

nature ; and at the hearing they offered to submit to Held, that the Court could not make a declaration of

be restrained from executing any of the works menthe rights of the plaintiffs under the lease, or grant an

tioned in the bill as threatened or intended, and to injunction in general terms to restrain the defendants pay the costs of the suit. from infringing those rights.

After some ineffectual attempts to settle a form of The defendants, having applied to Parliament for an

decree which would meet the views of the plaintiffs

, Act to enable them to execute the works, notice was taken the case was proceeded with. of the application in the decree.

Giffard, Q.C., and Kay, for the relators and plainBy an indenture dated the 24th December, 1853, the tiffs, contended that they were entitled to a decree in defendants, Boyle and Stuart, as trustees for the Mar- the terms of the prayer of the bill, including a declaraquis of Bute, demised to J. and J. S. Batchelor, the re

tion of their rights under the statute, and the lease, lators and plaintiffs, a certain parcel of land adjoining and an injunction in general terms restraining the dethe sea-shore in the neighbourhood of Cardiff, “toge- fendants from infringing such rights. ther with all ways, easements, and appurtenances" thereto, for the term of 75 years, for the purpose of the submitted that the Court had no power to make a

Sir H. Cairns, Q.C., and Cotton, for the defendants, lessees constructing thereon a graving-dock and a ship- decree

, declaring the rights of parties under a legal building and timber yard. The same defendants subsequently entered into an

instrument : and that an injunction in general terms agreement with the defendant Mitchell

, a tenant of acknowledged themselves to be in the wrong, than if

could no more be granted after the defendants had theirs, to build two quay walls in the neighbourhood the bill had been filed before they had shown any of the land demised to the Messrs. Batchelor.

intention of acting contrary to the agreement. It was alleged by the Messrs. Batchelor that such walls, if erected, would prevent them from having that

[Wood, V.-C., read the order he proposed to make, free access to the sea which was necessary for the

as stated below.] carrying on of their trade, and would interfere with Giffard, Q.C., in reply, objected that it was wholly rights reserved the public by the 1 Will

. 4, c. 22, s. unprecedented to take any notice of the defendants" 7; and it was also alleged that one effect of building application to Parliament.

« AnteriorContinuar »