Mr. Cole and Mr. A. G. Marten, for the motion, referred to Seaton v. Grant, 36 Law J. Rep. (N.S.) Read v. Barton, 3 Kay & J. 166; s. c. Palmer v. Walesby, 37 Law J. Rep. Mr. Glasse and Mr. Graham Hastings, for the plaintiff, opposed the motion.This is in fact a motion that the plaintiff give security for costs, but had it been in express words to that effect it would have been obviously bad, and must have been dismissed with costs. For that reason it has taken its present shape. We have, however, offered them the usual security for costs, but they have refused it, and we now withdraw the offer. In Seaton v. Grant Lord Cairns lays down four grounds for taking a bill off the file: first, where the plaintiff is required to give security for costs; secondly, where the defendant is willing to give the plaintiff all the relief he asks; thirdly, where the subject-matter of litigation has perished; and, fourthly, where the bill has been filed without the authority of the plaintiff. None of these grounds are to be found here. [MALINS, V.C. observed that in both those cases, as also in Gray v. Lewis, Law J. Notes of Cases, 1869, p. 53. the plaintiff had a substantial interest; here his interest was only of the value of 21. 08. 3d.] The magnitude of interest is not a point on which a mere interlocutory application can be decided. Mr. Cole, in reply.-In Seaton v. Grant the Court thought that the bill had been improperly filed, but it was never suggested that the plaintiff was not suing in his own interest. Here we distinctly allege that. The four exceptions mentioned by Lord Cairns operate only where the plaintiff has a real interest, but do not refer to nor exclude the case, as here, where the plaintiff has none; that case only decides that if a suit be genuine, then, unless it come within one of the four exceptions, the bill must be answered or pleaded to. We swear that this is the suit of Harle, and our affidavit is uncontradicted. Can the plaintiff swear that he is the bona fide plaintiff? MALINS, V.C.-There is nothing in which the public can be more interested than that this Court shall at all times be kept open to bona fide and proper litigants. But the proceedings of this Court are necessarily from their very nature so expensive and of so serious a character to those who are embarked in them, that it is of the highest importance that none but bona fide litigants should be found here, and that the Court should, if possible, have some means of stopping litigation which is not founded in good faith. Now, in Seaton v. Grant, though the litigation was in my opinion totally without foundation, yet I refused to take the bill off the file, on the ground that there were but three modes of defending a suit, namely, by demurrer, plea or answer; and that the motion to take it off the file was a novel proceeding, and a new mode of defence and cutting short a litigation, and my judgment was wholly confirmed in the Court of Appeal. Therefore I think the result of that is, that in all cases where a man files a bill in this court on his own account, and is respon sible for the consequences, he is entitled to carry it to a hearing at his own peril, and that the only remedy the defendant can look to is, if the case is one which is improper and calls for a dismissal, to dismiss it with costs at the hearing. It is also clear that the mere poverty of the plaintiff and the mere humility of his position in life are not a ground for a motion to stay the proceedings, it being the liability to which each and all of Her Majesty's subjects are exposed, that they may have a bill filed against them in this Court by a mere pauper, and when the proper day comes for getting rid of the litigation with costs nominally, no costs can be found on account of the poverty of the plaintiff. That being the liability to which all are exposed, it is of the highest importance that this Court should, if possible, exercise some control over suitors who do not come within the description of bona fide suitors. -(His Honour then referred to the evidence, stating his belief that the one share held by the plaintiff had been purchased with Harle's money; he commented on the smallness of the plaintiff's interest, and on the shortness of the interval between the culmination of Harle's quarrel with the directors of the company, for whom he had acted as solicitor, and the purchase of the share by the plaintiff. It was true that Harle had a written retainer from the plaintiff, but the Vice Chancellor rather looked upon that circumstance with suspicion. Had Harle been willing to give security to the defendants for all the costs of the suit, the motion would have been stopped; but the offer of security which had been mad efor the usual sum of 100l. was inadequate, where the costs might amount to several hundred pounds. Although there was not in this case, as in Forrest v. the Manchester, Sheffield and Lincolnshire Railway Company, any positive evidence that Harle had indemnified the plaintiff against costs, the presumption was that he had done so, or at any rate it was clear that he ought to have done so. In his opinion, therefore, the suit was in fact the suit of Harle, though instituted in the name of the plaintiff. His Honour then continued)--If there is a fatal blot in the title of the plaintiff which will prevent him from obtaining relief at the hearing of the cause, it is in mercy to him as well as to his opponents that the Court should stop such litigation, not at the latest but at the earliest possible moment. If this plaintiff comes here with a case which must be fatal to him at the hearing, am not I acting in compassion towards him by preventing him from going on wasting means, money and time in hopeless litigation? Above all, am not I bound to take care that the defendants shall not be harassed by being compelled to go to the expense and trouble of putting in an answer to this bill, when I have at this stage of the case facts which are a fatal bar to the success of the suit? Now, I am only here applying the principles which I expressed myself in Seaton v. Grant, and which were acted upon in the case of Forrest v. the Manchester, Sheffield and Lincolnshire Railway Company, by Lord Westbury. In Seaton v. Grant it must be borne in mind that Mr. Seaton was suing for his own benefit, and he was not the nominee of, or guaranteed by any other person. Mr. Bristowe has been kind enough, as amicus Curice, to mention the case of Bloxam v. the Metropolitan Railway Company, where similar objections to the plaintiff were mentioned. There, again, he was suing for his own benefit and at his own peril. Then there is the recent case of Salisbury v. the Metropolitan Railway Company. Mr. Salisbury had bought shares undoubtedly for the purposes of instituting the litigation, and that circumstance was looked upon in a very unfavourable light as regarded his position by Vice Chancellor James. And indeed I think it is the duty of every Judge to discourage any litigant who purchases an interest in a company merely for the purpose of becoming a litigant in affairs in which he has had no previous interest. That opinion I expressed in Seaton v. Grant, and I adhere to it now. And I am glad to see that Vice Chancellor James took the same view in Salisbury's case, although I think on the second motion he felt constrained to give Mr. Salisbury some kind of relief notwithstanding his position. In all these cases I have drawn this distinction, that where a man sues for his own benefit or relief and at his own peril, under no indemnity, there is no mode in which he can be stopped in this Court. In the case of Forrest v. the Manchester, Sheffield and Lincolnshire Railway Company, Lord Westbury put the case upon the ground that whereas Forrest was the apparent plaintiff, he was the mere nominee of the other company, by whom he was indemnified, and on whose behalf alone he sued. Lord Westbury says in his judgment, "In this case I am asked to reverse the order of the Master of the Rolls, dismissing this bill with costs. I desire it to be distinctly understood that my decision does not proceed upon the grounds stated by the Master of the Rolls. It is unnecessary for.me to express any opinion upon the grounds stated by his Honour, which if they are correct would be confined entirely to this particular case, because they have reference to the particular constitution of the present company. But the ground upon which I proceed is entirely that of personal exception to the character of the plaintiff, and the foundation of my decision is contained in this passage of the plaintiff's own examination, not attempted to be qualified or questioned; he says in that examination, The directors of the Packet Company directed the institution of this suit, and indemnify me against costs.'" Again, "It is not that they persuaded him to institute the suit, not that they instigated the suit, but that the directors of the other company have directed the suit, and are to indemnify the plaintiff against the costs of it. To use a familiar expression, the plaintiff is the puppet of that company." I adopt that expression, and say here, that this plaintiff, Robson, is the mere puppet of Harle. Lord Westbury then goes on: "It has been a very wholesome doctrine of this Court, that one shareholder, having in view the legitimate purposes of the company, may be permitted in this Court to maintain a suit on behalf of himself and the other shareholders of the company; but the principle upon which that constructive representation of the shareholders is permitted indisputably requires that the suit shall be a bona fide one, faithfully, truthfully, sincerely directed to the benefit and interests of those shareholders whom the plaintiff claims a right to represent." Can any one of these qualities be attri buted to this present suit? I say it is a suit not faithfully but unfaithfully instituted, not truthfully but untruthfully, not sincerely but most insincerely. Therefore, every one of these descriptions falling within the rule laid down by Lord Westbury, no relief can be given to the plaintiff in any such suit. Then, again, Lord Westbury says (and this passage is most material, as I will shew in a moment), "But can I permit a man who is the puppet of another company to represent the shareholders of the company against whom he desires to establish the interests and benefits of a rival scheme? That would be entirely contrary to the principle upon which this constructive representation has been permitted to be founded. When the plaintiff sues in that capacity, any personal exception to the plaintiff remains, and it would be in direct contradiction of every principle of truth and justice if I permitted a man to come here clothed in the garb of a shareholder of company A, but who is in reality a shareholder in company B, and has no sympathy whatever with, no real purpose of promoting the interests of the other company. Such a thing would be so much at variance with the principles of a Court of equity, that it would be impossible for it to entertain a suit of that description, which is a mere mockery, a mere illusory proceeding." Well, I characterize this suit as a mere mockery, a mere illusory proceeding. I also adopt another expression of Lord Westbury's, in which he says, "I have nothing to do with the motives of plaintiffs suing in this court if they come here in a bona fide character: the reason for their coming here is a matter beyond the province of a Court of justice to inquire into. But if a man comes here representing to me that he is a bona fide shareholder in a company, and that it is the bona fide suit of the company, and it turns out not to be the suit of that company, but in reality to be in its origin and in its very birth and creation the suit of another, then I repeat that this is an illusory proceeding, and ought not to be attended to by the Court. The well-known words-the trite quotation-will occur to the minds of those who hear me, Fabula non est judicium; in scena, non in foro, res agitur. If this gentleman is permitted to assume merely for the purpose of coming into this court the garb of a shareholder, but at the same time explicitly avows, This suit is not directed to the purposes of that company; I have nothing in common with the shareholders of that company; it has not emanated from the wish of the shareholders; it does not emanate from me as a shareholder; it is not my act; I am directed to do it by another party and another body of men,'-then, in point of fact, the suit is not the expression of his own will, nor is it the legitimate prosecution of his own objects, but it is the prosecution of the interests and objects of persons who have no right whatever to invoke the interference of the Court. I treat this suit as an imposition on the Court. By these words I mean no reflection upon the plaintiff himself." That is immaterial. The only question therefore is, whether this is the proper stage at which such a suit should be stopped. It has been urged upon me by Mr. Glasse and Mr. Hastings that, Lord Westbury having done this at the hearing of the cause, I must assume that only at the hearing of the cause can it be done. But I am of opinion that, as a demurrer is the stoppage of the suit, wherever the Court sees that the demurrer ought to be allowed because there is a fatal blot on the bill, so, on the same principle, this objection to the plaintiff's character must be put in force at the earliest possible stage. I am certain that, if these facts had been brought before Lord Westbury on a motion to take the bill off the file, he would in mercy to the parties have acted at that time and taken the bill off the file, and not have driven them to the hearing of the cause with a fatal blot attaching to the plaintiff's title, upon which the bill must have been dismissed with costs, at the expense of hundreds or perhaps thousands of pounds, which could have been avoided if the preliminary objection were acted upon. It seems to be a mockery of justice to let this go on, when all the expense can be saved. By demurrer it cannot be stopped, because there are allegations which would sustain the bill, and allow it to go on; allegations which prevent the bill from being demurred to. Nor can it be stopped by a plea. Therefore I think that when a suit has such an inherent vice attached to it, as that it appears that the man is not suing for his own benefit, but for the benefit of another, and under an indemnity, then the case comes within the authorities mentioned in Forrest's case; and I am satisfied that the proper course is to make a motion to take the bill off the file. He I have only one more observation to make, which is with regard to the observations of Lord Cairns in Forrest's case. says, "The case of Forrest v. the Manchester, Sheffield and Lincolnshire Railway Company, which was relied upon in the argument, is distinguishable from the present case upon two grounds: first, because that was the hearing of the cause; and, secondly (and this is the main distinction), because there the Court came to the conclusion that the plaintiff was simply a puppet in the hands of another company, and that he was indemnified by that company against the costs of the suit. That objection amounted to this, that a suit professing to be the suit of company A. was really the suit of company B. "No doubt Lord Cairns was right; it was at the hearing of the cause; but I cannot assume Lord Cairns to have intended by that expression that it should not be done at any other stage than the hearing of the cause. He says that was one ground; but another is, and that is the very ground here, that the plaintiff who is suing is not suing on his own account, but suing on account of another person. On all these grounds, therefore, being of opinion that this plaintiff is a mere puppet in the hands of Harle, that this is to all intents and purposes Harle's suit, not instituted for a bona fide purpose, that he is not entitled to represent the shareholders of this company, and that this suit is instituted for the purpose of working out those feelings which Mr. Harle has, this is a suit which, in my opinion, the files of this Court ought not to have been incumbered with. I think, as I said in Seaton v. Grant, the records of the Court should be purged from such a suit at the earliest possible moment, and, so far as I am concerned, it shall be done by taking this bill off the file, with costs. Mr. Cole asked for an order directing the defendant's costs of the suit and this Legacy-Set-off-Non-Payment of Interest by Tenant for Life of Estates charged under Term of Years. Real estate was devised to trustees for a term of years to secure a capital sum and interest thereon in favour of M, and, subject thereto, to the use of F. for life. F. was let into possession by the trustees, but failed to keep down the interest upon the charge. M. bequeathed a legacy to F, which the executors retained as a set-off against the unpaid interest:-Held, that F. was entitled to the legacy, there being no debt as against him, and no right of set-off in respect of the arrears of interest. This was a claim by the legal personal representatives of Francis Morley in respect of a legacy of 1,000l. bequeathed to him. under the will of Mary Morley, the testatrix in the cause. The payment of the legacy was resisted by her executors on the ground that they had a right of retainer. The facts, as shewn by the chief clerk's certificate were as follows: The grandfather of the testatrix, by his will, devised certain real estate to the use of trustees for a term of 500 years, and subject thereto to the use of Francis Morley for life, the trusts of the term being to raise (by mortgage, sale or otherwise) a sum of 9,000l., with interest at 47. per cent. from the death of the testator, and in the mean time to receive the rents and profits of the estate, and after keeping down the interest on the 9,000l., to pay certain annuities and permit the residue of the rents and profits to be received by the person for the time being entitled to the reversion expectant on the term. Under the trusts thereinafter declared Mary Morley became entitled to a moiety of the 9,000l. and the interest thereon. Upon the death of the testator, in 1827, Francis Morley being then an infant, the trustees of the term entered into possession, and received the rents and profits of the estate until 1832, in which year Francis Morley was let into possession, and remained in possession as tenant for life until his death, in 1854. While thus in actual possession he failed to pay the interest in full upon the 4,500l., and at the death of Mary Morley, in 1851, there was due to her for arrears of interest a sum considerably exceeding 1,000l., the amount of the legacy. The question which now came on for argument upon the further consideration of the suit was, whether as between the two estates there was a right of set-off and retainer in respect of such unpaid interest. Mr. Cotton and Mr. Joliffe, for the representatives of Francis Morley.-The legacy is payable irrespective of any such right of set-off as is here claimed. The fact of Francis having been allowed to receive the whole of the rents and remain in possession as tenant for life, placed him under no personal obligation to keep down the interest on the charge. There is no debt or legal liability as between him and Mary Morley's estate. The remedy, if any, is against the estate; and her executors must recover from us, if at all, through the remaindermen. It is like the case of a mortgagor who has been allowed by his mortgagee to receive the rents without paying the interest on the mortgage debt: the mortgagee has no claim against the back rents. Mr. Glasse and Mr. North, for the executors of Mary Morley.-When Francis was let into possession by the trustees, either there was an agreement with them |