within the provisions of the trust indenture, should be paid and allowed out of the trust estate.

The Taxing Master also disallowed the second objection, on the ground that the necessity and proper incurrence of such costs were proved by the affidavits and depositions before him, and by personal examination of the solicitors and production of documents and papers, no counter evidence whatever being adduced, except the depositions of the defendant Carnochan on cross-examination; and he stated that all the items of charges for the several abstracts and journeys charged in the costs were particularly verified and supported by evidence.

The plaintiff thereupon filed a petition, praying that the Taxing Master might be directed to review his taxation of the said bill of costs.

Jessel, for the plaintiff, contended that the answers to the objections were insufficient. The first answer avoided the question altogether, and the second answer was no answer to the objections taken against the items: the answers should be more specific. He then proposed to go through the objections, which were extremely numerous, by classes.

1st. A large portion of the costs allowed were personal ones, relating to actions brought by various creditors against the plaintiff after the trust deed had been executed. All the attendances on the trustee in connection with such actions were fair charges, but not costs incurred on behalf of the plaintiff. The words in the deed, however general, could not take in charges for legal expenses incurred beyond the scope of the trust deed.

2nd. The second class of charges to which he objected was for abstracts and copies of abstracts furnished on the occasion of the mortgage to Pearson, although Pearson, as the plaintiff's solicitor, was fully aware of the state of his title. No evidence was furnished that these abstracts were necessary at all. The only costs provided for by the deed of trust, in relation to the mortgage, were the costs of executing it.

3rd. Out of the number of journeys charged, a large ber were on the plaintiff's private account. There no evidence of their being necessary, except the defendant Carnochan's affidavit that, "to the best of his knowledge and belief, the said journeys were necessarily and properly taken for the benefit of the trust estates comprised in the deeds of assignment and mortgage."

Jessel, in reply.

THE MASTER OF THE ROLLS held that the Taxing Master was right; the objection substantially taken was that a large portion of the costs had nothing to do with the trusts; but the words of trust in the deed were very wide, and the actions brought against the plaintiff were "in relation to the trusts." The mortgage also bore a strong relation to the trusts, and could not be treated distinctly from it. The plaintiff wished the actions defended; or, at least, gave no notice to the contrary. The abstracts followed the same rule. The petition must be dismissed with costs. There was also an adjourned summons to discharge or vary the Chief Clerk's certificate.

Jessel objected; 1st, that many of the items were not vouched at all; and, 2nd, in some cases the vouchers produced were for smaller amounts than the sums allowed.

Selwyn, Q.C., contended that the summons, as seeking to re-open the whole account, some items of which were admitted to be correct, was altogether

wrong, and should be dismissed with costs.

THE MASTER OF THE ROLLS said that under the old practice when the Master made a report, and exceptions were made to it, they were always specific, but Sir L. Shadwell had admitted and approved of general objections (Moore v. Langford, 6 Sim. 323). He would have gone into the merits of the case at once, if the defendants had wished it; as they were not ready, he should adjourn the summons into Chambers, and direct the plaintiff to furnish the other side with a list of the items he objected to. The costs of the present application to be considered on the hearing in Chambers.

The intention of the trust deed was to make the most liberal provision. When Robert Sykes found himself trustee of the property, he was assailed on all sides, and constant resort to his solicitor was unavoidable. He was obliged to defend the actions against the plaintiff, to save him from immediate execution, which was the primary object of the trust deed.

that Robert Williams had made a will in the year 1858, devising the two farms to the plaintiffs absolutely, which will was written out for him at his dictation by one Francis Jones, a neighbour, and was executed by the testator in the presence of, and was attested by, Francis Jones and another witness; and charged that the defendant had obtained possession of and had fraudulently suppressed or destroyed the

will, and had entered into possession of the farms, alleging that the testator had died intestate, and that he himself was entitled thereto as his father's heir at law. The bill prayed that the defendant might be ordered to produce and deliver up the will to the plaintiffs, and that the validity thereof might be established by decree; or that in case he should refuse, or by reason of the loss or destruction thereof be unable to produce or deliver up the will, then that the plaintiffs might be declared to be entitled to the possession of the farms, and that the defendant might convey the same to them.

The plaintiffs' case was supported by the affidavit of the person who wrote out and attested the will, of the other attesting witness, and of a grandson of the testator, to whom the will had been given by the testator for safe custody, and who swore that he had lent it to the defendant's wife, and upon asking for it back again, had been told by her that she had destroyed it. Other witnesses swore that the defendant had admitted to them that he had had possession of the will, and had burnt or lost it.

The defendant and his wife absolutely denied ever having received or seen the will, and insisted that Robert Williams had died intestate.

Notice was given to cross-examine the plaintiffs' witnesses, but was abandoned, as the defendant stated, because of the expense it would involve.

warranted the conclusion that the will had been destroyed or suppressed; and upon this point, after going through the affidavits, his Honour stated that the present was exactly a case for the cross-examination of the plaintiffs' witnesses, and as the defendant had not thought proper to proceed with the cross-examination, it must be assumed that they had spoken the truth. Following, therefore, the case of Hampden v. Hampden (which was exactly in point), he would make a decree, declaring the plaintiffs entitled to possession of the farms, and directing the defendant to convey them to the plaintiffs, and the defendant must pay the costs of the suit.

Note. See further, as to the general right of the heir to an issue,

Stacey v. Spratley, 2 De G. & J. 94.

Master of the Rolls. MASON v. BROADBENT.

Power of Sale

Hampden v. Hampden, 3 Bro. P. Ca. 551; s. c.
Bro. P. Ca. (Dublin ed.) 250.
Woodroffe v. Wood, 1 Dick. 32;
Hayne v. Hayne, 1 Dick. 18;

to show that where there was strong proof of the destruction or suppression of a will by the heir, he was not entitled to an issue. They also referred to

Boyse v. Rossborough, 3 De G. M. & G. 817; 25 & 26 Vict. c. 42 (Rolt's Act). Bristowe for the defendants.

The heir at law is entitled as of course to have the validity of a will, by which real estate is devised away from him, tried by an issue devisavit vel non,

Man v. Ricketts, 7 Beav. 93, 101.

THE MASTER OF THE ROLLS, without calling for a reply, said that he fully concurred in the observations of the defendant's counsel as to the general right of the heir at law to an issue; but this right did not arise where the heir had himself occasioned the necessity for such a trial. Thus, if a will had been lost, the heir might put the alleged devise to the strictest proof of its contents before a jury; but if he had himself suppressed or destroyed the will, the case assumed a very different aspect, and, the presumption being against the person who was keeping back evidence, the right was gone by the heir's own act. The only remaining question was, whether the evidence

By an indenture, dated the 1st of June, 1848, James Tomlinson, in consideration of a sum of 1,150l. advanced to him by the parties thereto of the fourth part, conveyed certain freehold estates to the defendant in fee, subject to a prior mortgage and to a proviso for redemption on payment to the parties thereto of the fourth part of the principal sum of 1,1507. and interest. The indenture contained the usual power of sale, and it was declared that out of the proceeds of the sale the defendant should pay off the prior mortgage, and after payment thereof should pay to the parties of the fourth part "the said sum of 1,1507. and all interest thereon from the date of the indenture at the rate of 51. per cent. per annum, and lastly should deliver the surplus (if any) to James Tomlinson, his executors, administrators, or assigns, or as he or they should direct." And it was thereby declared that all moneys which should come into the hands of the defendant, his heirs, &c., by virtue of such indenture, from the sale of the premises, should be by him or them applied as follows (that is to say), first in the payment of certain costs and expenses therein mentioned, and, in the next place, in the payment of the prior mortgage debt, and the arrears of interest and all accruing interest due thereon, and then in the payment to the parties thereto of the fourth part, their executors and administrators, of the interest on the above-mentioned sum of 1,1501.; and that the surplus (if any) should

be accumulated towards payment of the principal sums intended to be thereby secured.

James Tomlinson died insolvent, and the equity of relemption of the mortgaged premises became vested in the plaintiffs, under a trust deed for the benefit of his creditors.

The defendant, in November, 1862, sold the mortgaged premises under the power of sale, and after paying off the incumbrances which had priority to the mortgage debt of 1,150., he claimed to retain the whole of the surplus in payment of the principal sum of 1,1507. and fourteen years' arrears of interest.

The bill was filed to obtain a declaration that the defendant was only entitled to receive the principal sum and six years' interest.

Selwyn, Q. C., and Horsey, for the plaintiffs.

There was no relation of trustee and cestui que trust between mortgagor and mortgagee: it was true that the mortgagee, whether there were a declaration as to the application of the surplus proceeds of the sale, for the benefit of the mortgagor, or not, was so far a trustee that he could pay the surplus proceeds into Court under the Trustee Relief Act, 1847; but such a declaration did not constitute an express trust within the Statute 3 & 4 Will. 4, c. 27, s. 25. Nor did the fact that the defendant was a trustee for the persons who had advanced the money make any differencefor it was not a conveyance upon trust for the payment of interest, so as to come within the principle of such cases as,

Cox v. Dolman, 2 De G. M. & G. 592;
Lewis v. Duncombe, 29 Beav. 175.

It was clear that if the sale had not taken place, only six years' arrears of interest could have been retained. Were fourteen years' arrears to be allowed, merely because the land was represented by money-money which in equity would be treated as land?

Again, the plaintiffs were not the mortgagor himself, but his assigns, who before the sale could have redeemed the land on payment of the principal and six years' interest.

They also referred to

Hunter v. Nockolds, 1 M. & G. 640;

Du Vigier v. Lee, 2 Hare, 326;
Sinclair v. Jackson, 17 Beav. 405.

Cole, Q.C., and Dryden, for the defendant. The estate was actually sold before the bill was filed. The defendant had received the proceeds, and applied them. Under the Statute 3 & 4 Will. 4, c. 42, s. 3, twenty years' interest might be recovered in an action on a covenant, and, the land having been sold, the rule which applied to a redemption suit was here inapplicable. The section of the statute relied on for the plaintiffs only applied when the subject-matter of the suit was land. Lewis v. Duncombe (loc. cit.) was a parallel case to the present, except that there the trust was in the ordinary form; in the present case there was a power of sale, on the exercise of which a

trust attached to the proceeds for payment of "all the interest from the date of the deed." They admitted that, notwithstanding an express contract to pay interest, the statute applied as against the land; but, the interest remaining due, the right still subsisted as against the money produced by the sale of the land, and was not destroyed by the 34th section of the Act.

THE MASTER OF THE ROLLS said, that it was settled that unless a trust was created for the payment of interest, the right thereto was barred after six years by Statute 3 & 4 Will. 4, c. 27, s. 42. He was of opinion that in this case there was no trust. The fact that the mortgagee was trustee for several persons did not affect the question. To bring the case within the exception of the 25th section of the statute, the trust must have been created by the mortgagor. In the present case, unlike the cases of Lewis v. Duncombe (loc. cit.), and Cox v. Dolman (loc. cit.), there was no trust term or other trust estate created for the purpose of paying the interest. It would be monstrous and anomalous to hold that, the day before the sale, the plaintiff's could have redeemed on payment of the principal and six years' interest, but that the day after the sale, fourteen years' interest could be retained against them. The case came within the principle of Hunter v. Nockolds (loc. cit.), as laid down by Lord Cottenham; but the point was worth raising, and he should give no costs.

21 Nov. 1863.

Master of the Rolls. Re THE GREAT SHIP COMPANY (Limited). Winding Up-Injunction to restrain Creditor -25 & 26 Vict. c. 89, ss. 85, 201.

After the presentation of a winding-up petition, under the Companies Act, 1862, the Court will restrain creditors from proceeding, whenever the winding-up proceedings appear to be bonâ fide.

This was the hearing of a petition for the winding up of the Great Ship Company (Limited) under the Companies Act, 1862 (25 & 26 Vict. c. 89).

On the 29th of September, 1863, before the presentation of the winding-up petition, the furniture of the Great Eastern, then lying at Liverpool, was seized by the sheriff's officer under a writ of execution, issued upon a judgment recovered by one Parry against the company (see ante, p. 79).

The winding-up petition having been presented on or about the 6th of October, the petitioners (Messrs. Glyn & Co.), on the 9th of October, obtained, ex parte, an injunction, restraining Parry from taking any further proceedings to realise his judgment.

A motion by Parry to dissolve the injunction now came on to be heard with the petition.

Selwyn, Q. C., and Swanston, for the petitioners.
Fooks, for the company.

Kindersley, V.-C.,

AND

Lord Chancellor. 19, 20, 24 Nov. 1863.

FOXWELL v. WEBSTER.

Consolidation of Suits-Plaintiff's right to sepa rate, full, and immediate Answers. Numerous suits having been instituted against dif

THE MASTER OF THE ROLLS (without calling upon the petitioner) said, that he must continue the injunction. There might be peculiarities in particular judgments to induce the Court to allow one judgmentcreditor to enforce his judgment at the same time that it restrained another; but he did not know of any thing special about Mr. Parry's judgment. In his opinion the object of the Legislature in these provisions as to restraining proceedings against the company, was to secure an equal division among the creditors whenever the Court saw that the company was hopelessly insolvent. If the petition was presented by a friendly creditor merely to defeat a judgment-creditor who had obtained execution, and the Court saw that it would be withdrawn as soon as the judgment-creditor had been got rid of, that was no case for interference; but it would be different if the petition made out a proper case for a winding-up order and was bona fide proceeded with. The Legislature to attain this object had made two distinct regulations; 1st, that a winding-up order was to operate as an injunction; and, 2nd, that, before the winding-up order, the Court was to have jurisdiction to grant an injunction to keep things as they were. If, in any case, His Honour had reason to suspect that the proceedings for obtaining a windingup order were collusive, and not intended to be proceeded with, he should refuse to interfere; but where a creditor came to ask permission to realise his judgment, not alleging that he had been delayed by any fraudulent or improper proceedings on the part of the company, but merely with the object of obtaining priority over the other creditors, was of opinion that he ought to be restrained, and that the funds ought to be distributed rateably among No special case had been made on the present occasion, and he should, therefore, refuse the motion to dissolve the injunction, but without costs. The usual winding-up order would

all the creditors.

be made upon the petition.

one:

Held, by the VICE-CHANCELLOR, that the Court could not interfere with the plaintiff's right to have a separate answer from each defendant.

Held, also, that in a patent case a defendant would not be excused from answering fully, and at once, on the ground that the validity of the patent would require to be established by an issue.

This was the hearing of four motions, having for their common object the consolidation of numerous suits instituted against different defendants for alleged infringements of Judkins' Sewing Machine patent. This patent, which was dated the 16th of October, 1852, was purchased by the plaintiff on the 18th of May, 1859. An association, called "The Makers', Dealers', and Users' of Sewing Machines Central Association," (of which some, but not all of the defendants were members), had been formed for the purpose of resisting the rights claimed by the plaintiff under this patent. In 1860, the plaintiff brought an action for infringement of the patent against one Thomas, but was nonsuited. On the 10th of March, 1862, the plaintiff filed in the Patent Office a disclaimer and memorandum of alteration in his patent. In a second action, on the 6th of February, 1863, against Thomas, the jury were discharged with out returning a verdict; but, in a third action, on the 16th of June, 1863, a verdict was entered for the plaintiff by consent, a compromise having been arranged on the terms that Thomas should pay 4,2507. to the plaintiff, and should receive from him a free licence to use the patent. In September, 1863, the plaintiff filed 134 bills, each against a single defendant. Each bill stated that the defendant thereto had manufactured, used, or sold, Judkins' Sewing Machines, in infringement of the plaintiff's patent, and had colluded with other persons for such a purpose; and prayed for an injunction, and for an account of profits; and that the defendant might be ordered to pay 57. as liquidated damages for each case of infringement of the patent, or damages to be assessed by the Court; that all machines infringing the patent might be delivered up to be broken; and that the plaintiff might be at liberty to inspect all machines in the defendant's possession. The facts stated in all the several bills, and the interrogatories on them, were in effect the same. Some of the defendants had

joined in filing an affidavit; but none of them had yet put in answers. Four notices of motion had been served on the plaintiff, on behalf respectively of nineteen, seven, eleven, and forty of the defendants. The first stated, that this Court would be moved, that the plaintiff might proceed in such one only of the suits as he should select for that purpose till such suit should have been determined, or until the validity of the patent therein should have been finally decided, or until the Court should otherwise order; and that the proceedings in the other suits might be in the meantime stayed, or the time for answering and producing documents therein enlarged, the several defendants thereby undertaking to be bound and to abide by the result of the said suit so to be selected, so far as the validity of the patent was concerned, in like manner as if the same result had been arrived at in the said several suits, or that such other order might be made as should be just for the purpose of deciding the validity of the patent, so as to bind the defendants in the several suits by means of one proceeding only. The other three notices were substantially identical with this; but in the second no enlargement of time for answering and producing documents was asked; and in the fourth, the defendants themselves specified the suit in which the plaintiff was to proceed.

Rolt, Q.C., E. E. Kay, and Bagshawe, for the first motion; Osborne, Q.C., and C. M. Roupell, for the second; Freeling, for the third; and Osborne, Q. C., and F. Waller, for the fourth :

1st. The verdict obtained in June, being by consent, did not estop the defendants from disputing the validity of the patent itself, and they did now dispute it. But if a plaintiff's title was doubtful, this Court, even where a single suit, and, a fortiori, where many simultaneous suits, for infringement of his rights had been instituted by him, was in the habit of directing, on an interlocutory application, an issue to determine the preliminary question as to his title, retaining the bill in the meantime,

Goulden v. Lydiat, 4 Y. & C. Ex. 374 (note);
Kent v. Burgess, 11 Sim. 377;

Fullagar v. Clarke, 18 Ves. 181;

Bacon v. Jones, 4 My. & Cr. 433;

Lewis v. Thomas, 3 Hare, 29;
Townley v. Deare, 3 Beav. 212;
Lancashire v. Lancashire, 9 Beav. 259;
Meyer v. Spence, 1 J. & H. 87.

2nd. With a view to prevent multiplicity of suits, the Court ought to take steps to have these separate suits consolidated. The present case contained the same incidents on which the Court founded its practice in the case of bills of peace, and suits maintained by some members of a company on behalf of themselves and the rest; viz., a claim on the part of the plaintiff of a general exclusive right, a general denial of it by many separate defendants, and an allegation against them by the plaintiff of a common infringement,

Ewelme Hospital v. Andover, 1 Vern. 265;
Lord Tenham v. Herbert, 2 Atk. 483;
How v. Tenants of Bromsgrove, 1 Vern. 22;
Filewood v. Palmer, Moseley, 169;

York, Mayor of, v. Pilkington, 1 Atk. 282;
Taylor v. Salmon, 4 My. & Cr. 134;
Wallworth v. Holt, 4 My. & Cr. 619;

It had been usually at the instance of the plaintiff that the consolidation had been ordered; but the same relief would be granted to defendants. In a case before Wood, V.-C., it was not denied that the tenants of a manor had, on a proper occasion, a right to file a bill of peace against the lord, to restrain him from commencing actions of ejectment against them severally,

Earl of Sefton and Others v. Marquis of Salisbury,

7 W. R. 272.

At Law separate actions instituted against several defendants who had a common defence, would be ordered to be consolidated,

Chitty's Archbold's Practice, c. viii. p. 1347, 11th ed.

3rd. If the suits were consolidated, and an issue directed, the Court ought, as a consequence, to stay meantime all further proceedings in the separate suits. It would be a gross oppression on the defendants, and, indeed, on the public, if many separate suits were to be pressed on, pending proceedings which might perhaps establish that the plaintiff had no title to sue in any one. Direct precedents could not be cited in favour of enlarging the time for answering till the issue had been tried; for applications for time being heard formerly by a Master, and now by the Chief Clerk, were not likely to be reported. But there were decisions showing that the Court would, on a proper occasion, stay further proceedings, and that, where a partial answer had been put in (and the principle was the same when the defendant had not answered at all), it would not compel a defendant to answer fully pending the trial of the issue,

De la Rue v. Dickinson, 3 K. & J. 388;
Clegg v. Edmundson, 3 K. & J. 389;
Greaves v. Neilson, 3 K. & J. 389;
Swinburne v. Nelson, 3 K. & J. 390;
Peacock v. Peacock, 16 Ves. 49;

Damer v. Earl of Portarlington, 2 Phil. 30.

4th. At the present stage of the suit, the plaintiff was entitled to a discovery from the defendants only on matters affecting his case for the validity of the patent. But all such information could be furnished by the defendants on affidavit as completely and more cheaply than by answer. They were willing to be put on terms to state what machines they had in their possession, to let the plaintiff inspect them, and to keep an account of profits.

Glasse, Q.C., C. Locock Webb, and Theodore Aston (of the Common Law Bar), for the plaintiff, in answer to