Storre v. Benbow, 1 W. R. 115; Cookson v. Lee, 1 W. R. 509;

Brandon v. Brandon, 7 De G. M. & G. 865; 2

Jur. (N. s.) 981;

Horne v. Barton, 26 L. J. Ch. 225;
Seton on Decrees, 39 (1st ed.).

Glasse, Q.C., and Hansard, for the plaintiffs.
Cracknall, for other parties.

THE LORD CHANCELLOR said that the circumstances of this case were unprecedented. There had been a mistake in the frame of the interlocutory decree, in the absence of which the defendant might possibly have obtained a final decree in his favour. His Lordship was of opinion that a case of that nature was within the indulgence of the Order (loc. cit.), as the circumstances were "peculiar" within the meaning of the words there used. There must, therefore, be a rehearing, notwithstanding the lapse of the five years. But if it should afterwards appear that the defendant was abusing the indulgence of the Court, the Court would find a way of fixing him with the costs of the proceedings. The costs, from May, 1861, up to and including the present application, would be dealt with by the Vice-Chancellor.

Consolidation of Suits-Patent-Validity Disputed-Several Classes of Infringement Mode of Procedure.

Numerous suits had been instituted for the infringement, by different defendants, of the same patent. The defendants moved to stay proceedings in the several suits, on the ground that the plaintiff ought first to establish the validity of his patent, which they denied :—

Held that, under the circumstances, the Court would take measures to have the question of validity tried first, and would allow all the defendants to be represented at the trial, by three selected by the rest.

This was an adjourned motion by way of appeal from a decision of Vice-Chancellor Kindersley, reported, suprà, p. 103.

On the 3rd of December, the appeal motions, which had been made before the Lord Chancellor on the 24th of November last (suprà, p. 105), were, in accordance with his Lordship's direction, mentioned again. In the meantime, sixty-eight affidavits had been filed by the defendants, for the purpose of giving the information required by his Lordship. The Lord Chancellor therefore, on the plaintiff's application, on the 3rd of December, ordered the motions to stand over to the 7th of December, to give the plaintiff time to consider these affidavits; and the motions were accordingly now renewed.

C. M. Roupell, F. Waller, and Bagshawe, in support of the motions.

Glasse, Q.C., Locock Webb, and Theodore Aston (of the Common Law Bar), for the plaintiffs.

THE LORD CHANCELLOR said, that he intended first to direct a trial as to the validity of the plaintiff's patent; and that trial would take place before himself, and without a jury. He would now make an order that the defendants Bradbury and Jones, and one other also to be selected by the defendants from among themselves, should, as representatives, and on behalf of all the other defendants, conduct the trial; that they should, in such capacity, deliver to the solicitor of the plaintiff, on or before the 21st day of the present month, their objections to the validity of the patent; and that the trial should take place on such day in Hilary Term next as might be fixed on, further application to be made for that purpose. His Lord. ship expressed his intention to avail himself of the assistance of an expert to be present in Court during the trial; but, as the parties declined his offer to allow them to join in recommending some person for chat post, there would be no mention of the matter in the

Reversal of the Decision Reported in
25 Beav. 260.

As this case depended on the special terms of an ill-drawn will, it is not proposed to report it in extenso, but merely to record the reversal of the decision of the Master of the Rolls reported in 25 Beav. 260.

It was admitted that no child had been born of the testator's sister Eliza (see the report in Beavan), and by reason of the expiration, on the 4th of July, 1863, of the period of eighteen years from the date of the testator's will, the plaintiff's estate had thus become

indefeasible.

The Attorney-General, Sir Hugh Cairns, Q.C., and Hemming, for the plaintiff, the appellant.

Rolt, Q. C., and P. Riddell, for the testator's heirat-law.

J. Hinde Palmer, Q.C., and Knox Wigram, for

Giffard, Q.C., and Rasch, for the trustees of the term of 500 years, in support of the Master of the

Rolls' decree.

THE LORD CHANCELLOR held that there was no intestacy, nor was any part of the rents undisposed of; that the plaintiff, having the first estate of freehold (vested at the death of the testator, but down to the 4th of July, 1863, liable to be devested in an event which had not occurred) was entitled, as from the death of the testator, to the surplus rents and profits which were not required for the purposes of the term of 500 years; and that the plaintiff was entitled also to the possession of the mansion and park, subject, however, to the condition of assuming the testator's name and

arms, and subject to the obligation of performing the directions and requisitions of the trustees of the term under and in exercise of the powers of management conferred upon them.

Lords Justices.

3 DEC. 1863.

}

Re THE GREAT SHIP COM-
PANY (Limited).

Companies Act, 1862, s. 201-Winding-up-
Injunction to restrain Creditor.

After the presentation of a petition for the winding up of a company, but before the order for the windingup, the Court will not, except under special circumstances, restrain a creditor from realising a judgment obtained by him against the company, upon which execution has issued, and the sheriff has taken possession before the presentation of the petition.

Quære, per KNIGHT BRUCE, L.J.

1st. Whether, after the sheriff has taken possession, the Court can interfere under section 201 of the Companies' Act, 1862.

2nd. Whether an injunction will be granted ex parte under that section.

This was a motion, by way of appeal, to discharge an order of the Master of the Rolls (see ante, p. 102), refusing a motion to dissolve an injunction obtained ex parte by Messrs. Glyn & Co. restraining Robert Sorton Parry, a judgment-creditor of the Great Ship Company (Limited), an unregistered company, from taking further proceedings to realise his judg

ment.

Parry obtained his judgment on the 28th of September, 1863, and on the 20ti the sheriff took possession of certain stores and furniture belonging to the company under a fi. fa, issued thereupon.

On the 6th of October, 1863, Glyn & Co., creditors of the company, presented a petition for the windingup of the company, and on the 9th they obtained the

On the 21st of November, 1863, the Master of the

Rolls made an order for the winding-up of the company, and at the same time refused the motion to dissolve the injunction.

Baggallay, Q.C., and A. Thomson, for the appellant, Parry.

The distinction between the 85th and 201st sections,

which give the Court a discretionary power to restrain proceedings before the winding-up order, and the 87th and 202nd sections, which peremptorily stay proceedings after the order, shows that in the former case the power ought not to be exercised, unless under special circumstances, which are not alleged to exist in the present case.

The omission to re-enact section 80 of the 19 & 20

Vict. c. 47, which made void executions issued within three months before the presentation of a petition for winding up, shows that under the Act of 1862 executions issued before the petition ought not to be interfered with.

The sale of the goods by the sheriff is not a proceeding against the company within the meaning of the 201st section.

Selwyn, Q.C., and Swanston, for Glyn & Co.

The object of winding up is to secure the assets of the company for the benefit of all persons interested, and to prevent individual creditors from wasting the assets by independent proceedings. The appellant was not really injured by the injunction, because the benefit of his judgment, if rightfully acquired, would be preserved in the winding-up, or he might get the leave of the Court to proceed.

The 201st section was made permissive in order to meet the case of a petition to wind up being presented for the mere purpose of getting rid of a troublesome creditor.

The 163rd section makes void executions put in force after the presentation of the petition.

Freeman, for the sheriff, who was served with notice of the motion in the Court below, but not of the appeal motion, asked for his costs.

Baggallay, Q.C., in reply.

The power given to the Court by sections 87 and 202 of giving the creditor leave to proceed, would have been sufficient to meet the case of mala fides in the presentation of petitions.

KNIGHT BRUCE, L.J., said, that two doubts occurred to him upon the 201st section; viz., 1st, whether, as nothing remained to be done but for the sheriff to sell the goods in his possession, the case came within the terms of the 201st section, and, 2nd, whether an injunction ought to be granted ex parte under that section; but, assuming both these doubts to be resolved in favour of the respondents, he did not think that

-no

there was sufficient ground for the exercise of the discretionary power given to the Court by the Act,special circumstances having been proved to exist which should induce the Court to act against a person who had been lawfully and justly possessed of a judg ment against the company, and no application having been made to wind up the company until some days after execution had issued on the judgment.

TURNER, L.J., said, that the question turned entirely upon the 201st section of the Companies' Act, 1862. That section clearly left it to the discretion of the Court, whether or not to exercise the power thereby conferred, and the question was, under what circumstances ought the Court to exercise that discretionary power; he thought that the Court was bound to regard legal rights and the interests not of one class only, but of all classes of creditors. There was nothing in the Act which gave to the general body of creditors a right to have their interests consulted without reference to the rights of individual creditors; the Court should, therefore, hold an even hand between them.

The section was intended to meet the case of unfair attempts to get possession of the assets of a company in extremis, but here a judgment had been obtained bona fide, and, after long opposition; execution had issued, and there was nothing to restrain it except the power given to the Court by the Act. It was a case in which the Court could scarcely have refused the creditor leave to pursue his remedy, even after the winding-up order, and, therefore, he ought not to have

been restrained before the order.

Minute.-Discharge the order of the Master of the Rolls, and dissolve the injunction. The costs of the appellant in both Courts, and of the sheriff in the Court below, to be paid by the petitioners.

Lords Justices.

5 DEC. 1863.

}

CHAPMAN V. BRADLEY.

and the question turned upon an indenture of settlement executed by Bradley after the death of his wife Susannah (formerly Susannah Guthrie), and, in contemplation of a marriage with her niece, Elizabeth Jones.

By this settlement, Bradley, "in consideration of the then intended marriage, and in consideration of the natural love and affection which he bore for his children by his then late wife, and for divers other good causes and considerations," assigned certain funds to trustees in trust for himself, his executors, administrators, and assigns, "until the said intended marriage should be solemnised, and from and after the solemnisation thereof" upon trust, for himself and Elizabeth Jones, for their lives, and for the survivor for his or her life, and after the death of the survivor former marriage, or by his then intended marriage, as upon trust, for such of his children, whether by his being sons or a son should attain twenty-one, or being daughters or a daughter should attain twenty-one, or marry, and if more than one in equal shares.

Shortly after the execution of the deed, Bradley and in Switzerland, according to the law of Switzerland, Elizabeth Jones went through the ceremony of marriage, and then returned to England.

Bradley died in 1860, leaving Elizabeth Jones, and marriage, all infants, him surviving. two children by her, and six children of the former

The bill prayed for the administration of Bradley's estate, and for a declaration that the pretended marriage and that the trusts by the settlement expressed to be between Bradley and Elizabeth Jones was null and void,

limited from and after the solemnisation of the then intended marriage, had not arisen, and that neither Elizabeth Jones, nor her children, nor the children of Bradley by his marriage with Susannah Guthrie, were entitled to any interest under the settlement, but that the funds therein comprised remained in trust for the executors or administrators of Bradley, and were distributable as part of his personal estate.

Niece-"Solemnised."

B, by a deed executed in contemplation of a marriage with J, his deceased wife's niece, settled property in trust for himself absolutely "until the intended marriage should be "solemnised," and from and after the solemnisation thereof," upon trusts, for the benefit of himself and J, and his children, whether by his former or by the then intended marriage. B went through the ceremony of marriage with J, and afterwards died:Held, that no marriage had been solemnised within the meaning of the deed, and that, consequently, B, at his death, was entitled to the property under the first

trust.

This was an appeal from the decision of the Master of the Rolls, reported, 2 N. R. 477.

The suit was instituted by creditors of William Bradley, deceased, for the administration of his estate,

the settlement, Mary Elizabeth Bradley one of the Jones, and her two children by William Bradley. children of William and Susannah Bradley, Elizabeth

The Master of the Rolls having held that the settleformer report, the defendant, Mary Elizabeth Bradley, ment was wholly void on the grounds stated in the

now appealed.

and the children by the former marriage being within the consideration of the intended second marriage,

Newstead v. Searles, 3 Atk. 265,

Clayton v. Earl Winton, 3 Madd. 302 n,

the trusts in their favour also failed. The trust was for a class consisting of the children of the former marriage, and the children by Elizabeth Jones, the latter of whom could not take, and as the share of each could not be ascertained, the whole must fail,

Porter v. Fox, 6 Sim. 485;

Webster v. Boddington, 26 Beav. 128. Baggallay, Q.C., and Bromehead, for the appellant. Though the consideration of the second marriage failed, the other considerations were sufficient to support the settlement in favour of the children by the first marriage,

Whalley v. Whalley, 3 Mer. 436. The solemnisation referred to by the settlement meant the performance of the ceremony, upon which, therefore, the trust for the settlor ceased, and the ulterior trusts came into effect. The trust for the children must be carried out as if there had been no children by Elizabeth Jones.

KNIGHT BRUCE, L.J., said, that the first question was, what was the true meaning of the word "solemnised" as used in this settlement? and he thought that it there meant "validly and effectually solemnised"; but no marriage had been validly solemnised between Bradley and Elizabeth Jones; the settled fund, therefore, remained under the first trust in the settlement vested in Bradley at the time of his death, and neither Elizabeth Jones nor her children, nor any child of Bradley, took any interest therein. He desired to express no opinion upon the grounds upon which the Master of the Rolls had founded his decision.

TURNER, L.J., agreed in thinking that the marriage contemplated by the settlement was a valid and effectual marriage, both from the language of the instrument, and from the trust in favour of the children of that marriage, as the parties could not be supposed to have intended provisions for future illegitimate issue. The trust for Bradley remained in force, and the ulterior trusts did not arise.

Lords Justices. LADY MARY TOPHAM v. DUKE 5 DEC. 1863. OF PORTLAND.

Costs.

This case is reported 1 N. R. 496. Their Lordships having reserved the question of costs, this day gave judgment.

TURNER, L. J., said, that he had again read through and considered the evidence and pleadings in the cause, with a view to the question of costs. There were two branches in the case, one relating to the appointments made by the defendant, the present duke, the other to the appointments made by the late duke. Those ap

pointments had been held by their Lordships to be void, so far as the plaintiff was concerned, as being a fraud on the powers under which they were made. As far, therefore, as the suits related to the appointments made by the defendant, the present Duke of Portland, the plaintiff was clearly entitled to costs as against him, as well as against the defendants Lord Henry Bentinck, and Lady Harriet Bentinck, since it appeared in the answer of Lord Henry that he had concurred in those appointments being made, and from the answer of Lady Harriet that she had concurred in giving effect to them, and claimed under them in opposition to the plaintiff.

With respect to the costs relating to the appointments made by the late Duke of Portland, his Lordship was of opinion that they ought to be paid out of the estate of the late duke; and as the defendant, the present Duke of Portland, had undertaken to represent that estate in the present suit, there must be an order for the payment of that portion of the costs. Still, having regard to the answers and cross-examinations of the defendants, the present Duke of Portland and Lord Henry Bentinck, he did not think that he could throw that portion of the costs upon either of them personally, nor upon Mr. Ellis, who had been a mere agent of the late duke in those transactions.

As respected the costs of the defendants, Mr. James and Sir William Topham, his Lordship did not think that they could have costs as against the other defendants, through the medium of the plaintiff. They had become necessary parties as defendants only, in consequence of the settlement made upon the plaintiff's marriage, and must therefore take their costs out of the settlement funds. None of the other defendants had, in his Lordship's opinion, any claim for costs as against their co-defendants.

There would be no costs of either of the appeals.
KNIGHT BRUCE, L.J., concurred.

Master of the Rolls. 3 DEC. 1863.

Practice Exceptions to Answer-Discovery as to Matters only material after Decree.

The plaintiffs in a suit to set aside a lease were held entitled to an answer as to the defendant's receipts from the property,-notwithstanding that the defendant denied the plaintiffs' title to any relief at all, and that the accounts sought were not material to the plaintiffs' case at the hearing.

This was the hearing of exceptions to the defendant Flight's answer.

The plaintiffs' case, as alleged in their bill, was as follows:

John Hall, being seised in fee of a messuage No. 45, Ludgate Hill, by his will, dated the 6th of October,

1818, devised this messuage to trustees, in trust to pay one moiety of the rent to his son John Ebdell Hall, and after his death in trust as to the same moiety for the children of his son as therein mentioned, and upon trust as to the other moiety for the separate use of his daughter Eliza Hall, and after her decease in trust for her children as therein mentioned.

The will empowered the trustees and the survivor of them, and the executors or administrators of such survivor, to lease at rack-rent during the minority or minorities of any person or persons for the time being entitled under the will.

The testator died on the 9th of May, 1826, and the trustees disclaimed. John Ebdell Hall was the testator's heir.

By an indenture dated the 1st of January, 1848, John Ebdell Hall demised the messuage No. 45, Ludgate Hill, to Thomas Russell, for twenty-one years from Christmas, 1847, at a yearly rent of 1807. The defendant Flight (as he admitted by his answer) purchased Russell's interest under this lease in 1856, under a

condition precluding him from requiring the lessor's title, and the lease was assigned to the defendant Cannon as a trustee for him.

Eliza Hall, afterwards Eliza Robson, died in 1840, One of the plaintiffs was the only daughter of Eliza Robson, the other two

and John Ebdell Hall in 1857.

were the two children of John Ebdell Hall.

The plaintiffs charged by their bill that Flight had under-let different parts of the property for rents amounting altogether to 4197. 2s., besides which some part of the premises was unoccupied and in Flight's possession.

The 9th interrogatory related to these charges, and also required the defendants to set forth the particulars of the rents and profits, and their respective receipts on account thereof.

The 15th interrogatory required the defendants to set forth what estates or interests they respectively had or claimed in the messuage, and by what titles respectively, and whether they had in any way aliened, charged, mortgaged, or otherwise dealt with the said messuage or their respective interests therein, and in

whose favour.

Flight, by his answer, denied any notice of John Hall's will, or of the plaintiffs' title, and claimed to be a purchaser for value without notice, and he sub

mitted that under the circumstances he was not bound to give any discovery or accounts as to the rents received by him, or his dealings with the property. He did not otherwise answer the parts of the 9th and 15th interrogatories set out above.

Bagshawe, for the plaintiff, relied upon the rule that a defendant answering was bound to answer fully, Swinborne v. Nelson, 16 Beav. 416; Clegg v. Edmonson, 22 Beav. 125; Howe v. M'Kernan, 30 Beav. 547.

G. W. Hemming, for Flight, contended that the

plaintiff's right to discovery only extended to what was necessary to make out his case at the hearing, Mansell v. Feeney, 2 J. & H. 320, 323. [The Master of the Rolls.-Does not Lord Eldon say that a plaintiff is entitled to an answer as to what would be due to him if he obtained a decree, in order that he may have the option of taking the defendant's account as it stands, without any reference to the Master ? *]

The most convenient course would be to order the exceptions to stand over till the hearing, as the Lords Justices had done in,

Clegg v. Edmonson, 3 Jur. (N. s.) 299,
Grieves v. Neilson (not reported on app.),
Swinborne v. Nelson (id.),

which were cited and followed in

De La Rue v. Dickenson, 3 K. & J. 388. The Court has a discretionary power to do this, where it sees that the discovery sought will be of no appre ciable importance before the hearing.

THE MASTER OF THE ROLLS held that the defen

dant must answer the interrogatories. Although the knowledge of the profits received by the defendant aside the lease, it might nevertheless be very important from the lease might not assist the plaintiffs in setting to them. For if the defendant admitted the receipt of large profits, the plaintiffs, if they succeeded at the true, and take a decree for payment on that footing, hearing, might accept the defendant's statement as instead of a reference to Chambers. On the other hand, a statement by the defendant that there were no profits might induce the plaintiffs to abandon the

suit.

with the plaintiffs' right to a full answer.
He thought it would be dangerous to interfere

Minute.-Exceptions allowed with costs.
Note. See also,

Caton v. Lewis, 22 L. J. (N. s.) Ch. 945.

Master of the Rolls.

3 DEC. 1863.

}

*Rowe v. Teed, 15 Ves. 372, 378?