« AnteriorContinuar »
north-west side of the said close, four yards wide, to At the suggestion of their Lordships the case was any adjoining lands and premises."
adjourned that it might be heard, by consent, as a In 1842, the devisor of the plaintiffs, being the owner petition of appeal, and not as an interlocutory of the plot E, and the defendant, Hannah Gartsed, motion. The plaintiffs agreed thereto, on condibeing the owner of plot F, in order to secure the privacy tion that the defendant should not attempt to disturb of the road, and to prevent the same from becoming a the mode of partition which the Chief Clerk had thoroughfare, purchased from William Dickinson the adopted. No point arose as to the minerals, which absolute customary inheritance of the strip of land were vested in the lord of the manor. marked in the plan as the private road A to B, at the
12 Nov. 1863. price of twenty shillings, which was accordingly sur
Dart, with assent, now opened the case against the rendered to them.
whole decree, and argued, At this date the field marked k in the plan, belonged
1st. That the value of the subject matter of the suit to one Bradshaw, and no road or access to it existed is not more than twenty shillings ; that the rule from any part of the road a to B; but there was an exit which held good in this Court as to personalty is at point L.
equally valid as to realty, and that, consequently, In 1849, Hannah Gartsed became the owner of the the Master of the Rolls ought to have dismissed the plot 6 and 1, and the field K; and as owner of an bill as frivolous and oppressive. undivided moiety of the road A to B, made use of
2nd. The right of way which the plaintiffs propose that road for obtaining access to the field K, and a to give the defendant along the entirety of the road is coachhouse and stables which she had built at the not equivalent to the right of user which she now corner of that field, at the spot marked m.
enjoys; and the effect of the partition, as ordered by It was alleged by the plaintiffs, that the defendant the Master of the Rolls, will be to narrow the legal was about to erect dwelling-houses on the field K, and rights of the defendant over the moiety of the road a to to make the private road A to B a.common thoroughfare x, to those enjoyed by the owners of plots c and D. to them; and that the field K was an eligible site for building purposes.
Southgate, Q.C., and Bagshawe, for the plaintiff, in The defendant declining to desist from making use support of the decree, contended, of the private road A to B as a thoroughfare to the field
1st. It is not the value of the road, but of the legal K, the plaintiffs filed the present bill for a partition of consequences flowing from the ownership, which are to the road. The Master of the Rolls directed a parti- be considered in and form the real subject matter of tion, and, by a decree dated 30 May, 1861, ordered the this suit. partition to be made, “subject to all such rights of
2nd. The right of way which the defendant enjoyed way over the same, as existed at the date of the said previous to the purchase of the road was only suspended surrender of 1842.” And the Chief Clerk by his cer- during her ownership of an undivided moiety of the tificate, dated the 29th June, 1863, found that the entirety of the road, and the partition will revive such moiety of the road marked a to x had been allotted right of way over the entirety. The right of user to the plaintiffs, and the moiety marked x to B, to which she now enjoys over the entirety, cannot posthe defendant.
sibly survive the partition. To hold otherwise will
be to render the partition practically null and void. 4 Nov. 1863.
The plaintiffs are willing to concede to the defenOn this day Dart (Selwyn, Q.C., with him), ondant a right of way to the coach-house and stables. behalf of the defendant, moved that the order made by
KNIGHT BRUCE, L.J., said he did not think the Master of the Rolls on the 25th of July, 1863, their Lordships were empowered to dismiss the bill. tipon motion to His Honour to discharge the cer
He was of opinion that a right merely dependent tificate of the Chief Clerk (see 2 N. R. 568), be
on ownership could not be reserved after partition. referred back to His Honour's chambers; and that, Here there was no ground for suggesting that any in resettling the deed of partition, the partition be right was vested in the defendant beyond the enjoymade subject to the “right of the defendant, her heir ment pertinent to the original closes. It appeared that and assigns, and all persons authorised by her or there was, and always had been, an entry to the them in that behalf, to use the same as a horse, foot, field K at the point L, so that it was unnecessary and carriage way, to the extent, and in the manner to, for him to consider the only point on which any and in which she or they, under or by virtue of the question could arise, and on which many learned surrender of the 24th day of March, 1842, and the pre- Judges had differed ; viz., that which arose, —where a rious surrenders and assurances recited in the said late owner set up a right to a "way of necessity.” covenant to surrender, might have used the same in
TURNER, L.J., concurred. ease the partition directed by the said decree and the said covenant to surrender had not been made or ex- Minute.
Vary decree by stating the concession of ecated, and the surrender thereby covenanted to be a right of way to coach-house and stables. Dismiss made had not been made."
motion and appeal with 101. costs.
between Garbett and the Staintons ; that acts of fraud, Lords Justices.
WALSHAM V. STAINTON. prejudicial to Garbett, were committed by the Stain5, 6, 14 Nov. 1863.
tons in the course and by means of that relation;
and that, so far as the acts of each of them were conPleading-Parties- Multifariousness-Fraud.
cerned, the Staintons were so associated together, as to J and H, managers of a company, combined to con- entitle the plaintiff to proceed in Equity against the ceal the true amount of the property of the company, personal representatives of both. whereby I was enabled to buy shares at an under
The demurrer must be overruled, but he had no Talue:
objection to reserve to the demurring defendant the Held (reversing the decision of the Vice-Chancellor), benefit of it at the hearing of the cause. that the representative of J was a proper party to a suit instituted, long after the death of J, to set aside the
TURNER, L.J., said, that, under the circumstances sale and recover the intermediate profits of the shares, alleged in the bill, the estate of Joseph Stainton was although I had derired no benefit from the transaction. liable in respect of the profits of the forty shares. A
A bill seeking relief in respect of two sales alleged to gross case of fraud was alleged ; it was not denied that be the fruits of a single fraudulent system, is not mul- Joseph Stainton would have been liable to an action
at law; and he could not assent to the proposition, tifarious.
that when two contidential agents had conspired to This was an appeal from the decision of Wood, V.-C., get possession of the property of their principals at reported 2 N. R. 312, allowing the demurrer of the an undervalue, the estate of the one was not liable in personal representative of Joseph Stainton for want of Equity in respect of the property so obtained by the equity, and multifariousness.
other, if he himself derived no benefit. The allegations and prayer of the bill are sufficiently
As to the objection that there was no allegation of stated in the former report; also in 1 H. & M. 322.
fraud upon the mortgagees who sold the shares, it was Giffard, Q.C., and Eddis, for the appellant. enough that the bill alleged a fraud by the purchaser
The two sales, having resulted from one system of which affected the mortgagor, as well as the mortgagee. fraud pursued by confidential agents, are in fact a
The two sales being alleged to be the fruits of a single transaction, and the bill is not multifarious, single fraudulent system, the bill was not multifarious. Atlorney-General v. Cradock, 3 My. & Cr. 85.
Minute.- Demurrer overruled ; the costs, both in In respect of the sale of the forty shares, Joseph the Court below and on the appeal, to be dealt with by Stainton would have been liable to an action of deceit, the Judge by whom the cause should be heard. Pasley v. Freeman, 3 T. R. 51 ;
Note.-See further as to demurrers for multifarious. Eyre v. Dunsford, 1 East, 318 ; Sugd. V. & P. (13th ed.) 4 :
ness on such grounds, and there is a concurrent jurisdiction in Equity, where
Campbell v. Mackay, 1 M. & Cr. 603 ; the remedy does not die with the person.
Att.-Gen, v. Corporation of Poole, 4 M. & Cr. 17;
Wallworth v. Holt, 4 M. & Cr. 619. Sir H. Cairns, Q.C., and J. Pearson, for the respondent.
The two sales are distinct transactions ; the relief sought against the estate of Joseph Stainton in respect
Master of the Rolls. of the forty shares is of the nature of damages, but a
14 Nov. 1863. Court of Equity gives no damages against a wrongdoer who derives no benefit from the wrong,
Arbitration Attendance of Witnesses JurisBishop of Winchester v. Knight, 1 P. W. 406;
diction—3 & 4 Will. 4, c. 42, s. 40. Powell v. Aikin, 4 K. & J. 343. It does not appear from the bill that the mortgagees,
Where a submission to arbitration has been made a rule by whom the sales were made, were deceived as to the of the Court of Chancery, an order for the attendance of value of the shares.
witnesses before an arbitrator may be obtained as of Giffard, Q.C., in reply.
The Staintons were quasi-trustees, and the estate In this case a submission to arbitration had been of each was liable for the consequences of their breach made a rule of the Court of Equity under section 17 of duty, whether he derived any benefit therefrom or of the Common Law Procedure Act, 1854. not,
W. Morris now applied for an order, requiring a Montford v. Lord Cadogan, 17 Ves. 485.
witness to attend before the arbitrator. The 3 & 4 14 Nov. 1863.
Will. 4, c. 42, s. 40, gave the Court power to make Knight Bruce, L.J., said, that the allegations of such an order. In the Common Law Courts this was the bill showed that a relation of confidence as to the an order of course ; but as there did not appear to be property, which was the subject of this suit, existed any precedent for such an order in this Court, the
secretary wished the point to be mentioned to His This order was made upon affidavits, proving the Honour.
two French mortgages. THE MASTER OF the Rolls made the order. He in the fund, now came on to be heard.
Three petitions for the payment of different shares thought the practice of the Common Law Courts ought to be followed, and that such orders might in Selwyn, Q.C., and Beavan, for the trustees of the future be made as orders of course.
company, contended, that they had a prior title to * Note. Before the Common Law Procedure Act, Henry Robert Macleod's share. Their stop order 1854, it was held in Hall v. Ellis, ( 9 Sim. 530,) that extended to the whole fund in Court. The subsethe Court of Chancery had then no jurisdiction to quent encumbrancers ought to have inquired of them make such an order.
what charges they had upon the fund. There was no analogy between a stop order and notice to trustees.
A stop order was originally merely a process to protect Master of the Rolls.
MACLEOD v. BUCHANAN. a fund. The first case giving priority on account of a 14 Nov. 1863.
prior stop order, Mortgagee-Stop Order-Priority.
Greening v. Beckford, 5 Sim. 195,
was subsequent to the cases as to notice to trustees, A company having purchased certain shares of a fund
Dearle v. Hall, 3 Russ. 1 ; in Court, oblained a general stop order on the whole
Loveridge v. Cooper, 3 Russ. 30. fund. They afterwards purchased another share, but did not obtain another stop order :
Baggallay, Q.C., and G. Simpson, for the French Held, that they must be postponed to a subsequent encumbrancers, were not called upon. mortgagee without notice, of the same share, who hod obtained a stop order.
Hobhouse, Q.C., and Whitchcad, appeared for the
claimants of another share. The effect of a stop order in giving notice and securing priority, is limited to the charges in respect of which it
THE MASTER OF THE ROLLS was satisfied that he is obtained.
had already had this point before him, possibly in Upon the death of Mrs. Jane Macleod, in June, Chambers, and that he had then entertained a strong 1862, a sum of 3,402. 58. ld., Consols, in Court in opinion that a stop order, however general in its these suits, became divisible equally among seven of terms, did not affect any one with notice of, or give her children.
any priority to, any charge not existing at the date of Previously to March, 1846, three of these seven the stop order. If a person who obtained a stop shares, viz., those of Mary Ann Macleod, George order upon a fund in respect of a charge of 5001. was Macleod, and Thomas Harrison Scott Macleod, were able to found upon this charges for any further sums purchased by the General and Reversionary Invest- he might advance, the greatest frauds might be perment Company, and were assigned to their trustees. petrated, and the Court, therefore, required every ap
On the 12th of March, 1846, the company's trustees plicant for a stop order to state in respect of what obtained an order that no part of the 3,4021. 58. 1d. charges he obtained the order, and the particulars of Consols should be paid out without notice to them. the charges must be either established by evidence
This order was made upon affidavits proving the or admitted by the assignor. The Court was in assignments of the three shares.
exactly the same position as a trustee of a fund. As By an indenture dated the 23rd of April, 1847, a person who contemplated advancing money on the Henry Robert Macleod, another child of Mrs Jane fund would go to the trustee to know of what preMacleod, assigned his one-seventh of the 3,4021. 5s. 1d. vious advances he had notice, so when the fund Consols to the company's trustees absolutely, but no was in Court he would go not to the person who had new stop order was obtained by the company.
obtained the general stop order, but to the Court, and On the 5th of September, 1860, Henry Robert would there ascertain in respect of what charges the Macleod executed two instruments in the French lan- stop order had been obtained. Supposing he found that guage, which, according to the view taken of them by the the order had been obtained in respect of only threeMaster of the Rolls, amounted to assignments of his sevenths of a fund, and relying upon the result of his one-geventh share of the 3,4021., 58. 1d. Consols, (1st) investigation, made an advance to the owner of one of to M. Rousselle to secure 2,499fr. 30c., and (2nd) to the other sevenths, Henry Robert, and obtained a stop Messrs. Rousselle & Stier, to secure 5,209fr. 95c. order ; supposing further, that the person who had Ronsselle & Stier had at this time no notice of the obtained the general stop order made afterwards an assignment to the company's trustees.
advance to Henry Robert ; then if Mr. Selwyn's conOn the 11th of July, 1862, the French encum- tention were well founded, the person with the general brancers obtained an order that no part of Robert stop order would have the priority, though his advance Henry Macleod's share in the 3,4021. 58. 1d. Consols was subsequent to the other. His Honour was satisshould be dealt with without notice to them.
fied that the effect of a stop order was confined to
giving the Court notice of the charges which had been
established against the fund at the standing of ullae Master of the Rolls.}
GLANVILLE v. GLANVILLE. Society would, 17, 18 Nov. 1863. therefore, only take Henry Robert's share, subject to
Will-Class. the two French mortgages.
Gift to "my four nephews and niece, children of my Re WATERLOO LIFE,
brother R,” naming three nephews and a niece. Rhad Master of the Rolls.
four sons and a daughter living at the testator's 16 Nov. 1863.
death :Ex parte SAUNDERS.
Held, that a fourth nephew was not an object of the Winding-up-Director—Qualification-Con- gift. tributory
This was a suit for the administration of the A person does not make himself liable as a contri-estate of Robert Glanville. The testator by his
sum of butory of a company by becoming a director, even though will, dated in 1862, gave to trustees a he has express notice that a certain number of shares Bank Stock in trust for his four nephews and constituted the qualification of a director.
niece, children of his brother Richard, — viz.,
Robert, Richard, Francis, and Margaret, to be This was an adjourned summons to determine whe- equally divided between them, with a survirorship ther Mr. G. L. Saunders was to be placed upon the clause in the event of any of them not attaining list of contributories of the Waterloo Life, Education, twenty-one, and he directed his trustees during the Casualty, and Self-Relief Assurance, which was being minority of his said nephews and niece, to apply the wound up under the Companies' Act, 1862.
interest and annual produce of his or her share toThe 202nd clause of the company's deed of settle- wards his or her respective maintenance or educationment provided that the qualification of a director until the end of the year 1872, when he directed a should be the holding not less than 500 shares in his general division of the property to take place. own right for at least three months thence next pre- The testator's brother Richard had five children ceding. Saunders was elected a director on the 29th living both at the date of the will and at the time of of October, 1861, and subsequently accepted the office the testator's death ; namely, the four named in the and acted as such. He was proved to have known will, and Thomas, the youngest. It appeared that that 500 shares were the qualification required for a the youngest of the four children named in the director.
will would come of age in March, 1871, and that There was also evidence to show that he had executed Thomas would come of age in February, 1873. a transfer accepting 520 shares; but the Master of the Rolls held that this was not established.
E. Lloyd, for the eldest son, who was of age, offered
no objection to Thomas being admitted to take a share Baggallay, Q.C., and Swanston, for the official | under the will. liquidator, also contended that Saunders' acceptance
A. Willcock, for the infants Richard, Francis, and of the office of director, with distinct knowledge that a
Margaret, contended that Thomas was excluded. The director must hold 500 shares, in itself made him
cases of, liable as a contributory for so many shares. The
Tomkins v. Tomkins, 19 Ves. 126 n. (30) ; present case was distinguishable from,
Scott. v. Fenoulhett, 1 Cox, 79; The Marquis of Abercorn's Case, 10 W. R. 451, 548,
Garvey v. Hibbert, 19 Ves. 125 ; which was reversed by the Court of Appeal only on
were distinguishable. There the gifts were to a certain the ground that no sufficient notice of the provisions number of children ; in the present case the children of the deed of settlement was brought home to the
were named. Marquis. The Court ought not to allow any juggling among the directors to affect the rights of the share
B. T. Williams, for Thomas, the youngest son. holders or of the creditors,
The grammatical construction required that “four.” Re Newcastle Marine Insurance Company, Ex should be read with "nephews.” “My four nephews parte Brown, 19 Beav. 97.
and nieces" would have been different.
The postponement of the general division of the proThe Master OF THE Rolls said, that he had had perty showed an intention to include the youngest occasion to consider this question in Cotterell's Case, child, who would be close on 21 years of age at the (5 July, 1862) and had there come to the conclusion time appointed for the division. that he was bound by the decision of the Court of Appeal in the Marquis of Abercorn's Case, -even in
Bevir, for the executor, took no part in the argu
ment. cases where the person becoming a director was aware of the provisions of the deed of settlement; and that THE MASTER OF THE ROLLs held, that the word decision was affirmed by the Lords Justices.
“four" was not necessarily confined to nephews,"
but included the nidce. He might have held differ- J. W. Chitty, for the exception to the fifth interroently if the words had been “for my four nephews gatory, urged, that a general denial is not a sufficient and for my niece.” He could draw no inference in answer where there is a specific averment, favour of Thomas from the fact that he would not be Earp v. Lloyd, 4 K. & J. 58 ; twenty-one till February, 1873, and the general divi- Tipping v. Clarke, 2 Hare, 383. sion of the property was postponed till the end of And that, the jurat being to the answer, but not to 1872. The inference, if any, was the other way. the schedule, the contents of the schedule were not
The money would be carried to a general account, supported by the defendant's oath. He contended and the dividends of such of the children as were minors, further, that the answer to the thirty-sixth interrogannder existing circumstances, be paid to the father. tory was evasive.
Baily, Q.C., and Langworthy, in support of the
answer, arguedKindersley, V.-C. BOLDERO V. SAUNDERS.
1st. That the defendant, by the references to the 17 Nov. 1863.
schedule, in his answer, must be taken to have incorPractice-Excceptions to Answer-Schedule
porated its contents in his answer.
2nd. That the statement, that the defendant had no Answering by Implication.
means of knowledge, necessarily implied that he did A deforlant is bound to answer directly and precisely; not know, and could not set forth the particulars asked ciud ir ansioer to a specific interrogatory is not at liberty for. At all events, the defendant would be unable to to refer to a schedule which he does not pray may be afford fuller information, even should the exception be token as part of his answer.
allowed. This suit was for an account of the dealings of the KINDERSLEY, V.-C., said, that he must allow defendant in respect of an Indian mortgage, under exception to the answer to the fifth interrogatory. which he had been in possession, and in which the The other exception would also be allowed. It was plaintifi
, as personal representative of the late John probably true, that the plaintiff would obtain no fuller Bildero, claimed to be interested jointly with the information from the defendant by compelling him to defendant.
answer precisely ; but it was the right of a plaintiff to The case came on upon the hearing of exceptions to have a precise and direct answer. To force a plaintiff the defendant's answer.
to rest satåsfied with a statement, which, only by imThe plaintiff's fifth interrogatory required the defen- plication contained an answer to the interrogatory, dant to set forth, whether he had not, under certain would be to establish a new mode of answering. circumstances therein mentioned, made a further ad
Note.-See, also, vance to the mortgagor.
Lafone v. Falkland Islands Company, 3 K. & J. The answer denied that the defendant had made any such further advance, except as in that his
Inglessi v. Spartaei, 29 Beav. 564 ; answer and as in the second schedule thereto might
Patrick v. Blackwell, 17 Jur. 803. appear. The answer also contained a statement, that this second schedule contained an account of the defendant's dealings with the mortgaged estate, and all the particulars which the defendant was capable of giving,
Stuart, V.-C. so as to show his dealings with the estate as mortgagee.
} GURNELL V. GARDNER.
11 Nov. 1863. The answer further stated, that the contents of such Becond schedule were, to the best of the defendant's in- Equitable Assignment of Chattels-Power of formation and belief, correct, and that where the said
Attorney. account was deficient, such deficiency arose from the defendant not having procured, or being able to pro
A creditor of G applied to him for payment of his cure, such particulars precisely. But the usual words debt. G, having certain wool at a wharfinger's, directed of incorporation, by which the defendant prays that the creditor to take the wool, sell it, pay the unpaid the schedule may be taken as part of the answer, were
balance of the purchase money, and keep the rest himomitted.
self. G died on the same day; and the creditor subseHis thirty-sixth interrogatory required the defen- quently took possession of the wool and sold it :dant to set forth, whether he had got in certain arrears
Held, that this was a valid equitable assignment of of rent, and to specify the several amounts of those the wool, and not a mere power of attorney which deterartears, and the times when they came to his hands.
mined by the death of G. The defendant answered, that he was not able to state In July, 1862, Joseph Gledhill bought of one Bradley the particulars asked for, as he had no means of know- a quantity of wool, for which he paid part only of the ledge whatsoever, which would enable him to set them purchase money. By the order of Gledhill the wool forth,
was forwarded to the wharf of the defendant Gardner,