網頁圖片
PDF
ePub 版

the company has a right to take the further per-
formance of the contract out of the contractor's hands;
but it is now a question of doubt whether the con-
tract has been duly observed or not. Then comes
the question of comparative injury, and whether the
greater injury would be done to the contractor by
taking the contract out of his hands, and the railway
company themselves completing it; or whether the
greater injury would be done to the railway company
by allowing the contractor to continue the completion
of his contract. On the question of comparative in-
jury, I really entertain no doubt whatever, because if,
on the one side, the possession is given back to the con-
tractor, and he is to be allowed to go on with the com-
pletion of his contract, and he does not go on with it,
or completes it in an improper and insufficient man-
ner, this Court has no power whatever to interfere, and
to see to a due completion of a contract of this kind.
But if, on the other hand, the contractor is improperly
disturbed and turned out by the railway company, he
has a perfect and sufficient remedy in damages against
the company. I had at one time, during the argument,
some doubt upon the question about the chalk, but
that was removed by my own consideration upon the
subject, which turned out afterwards, from what Mr.
Taylor read from the affidavits, to be correct. Be-
cause, no doubt, as to the chalk in the first place, it
may not be (I do not say whether it is or not) surplus
chalk within the meaning of the articles. Now, as-
suming this to be so, the company had to take posses-
sion, and the further performance of the contract, out
of the plaintiff's hands; they must, therefore, have the
line on which the railway is made in their possession;
they must, therefore, take the chalk out, and taking it
out, unless it is contained on waste land, it must ne-
cessarily be removed for the purposes of the contract.
Therefore, I think, the injunction fails equally as to
the chalk. Mr. Fitzhugh was good enough to forestall
an observation on the subject of cases of this descrip- |
tion, by referring to the case of Waring v. The Man-
chester and Sheffield Railway Company (7 Hare, 482; 2
H. & T. 250; 14 Jur. 613). The real question there
was, how the Court acted when the injunction was
applied for. The Court refused the injunction on the
facts of the case, and so here, on the facts of this case,
I think the injunction must be dissolved.

Notes for reference-Johnson v. Shrewsbury (3 De G., Mac., & G. 914; 17 Jur. 1015). See also Munro v. Wivenhoe (post).

ROLLS COURT.

COLLIER v. M'BEAN.-May 1, 2, and 26. Estate tail-Equitable estate for life, and legal remainder in tail-Shelley's case- Conveyance of legal estate by trustees-Breach of trust. Devise of real estate to trustees, upon trust to let the same, and apply the rents and profits in payment of debts and legacies, and from thenceforth upon further trust to pay the rents and profits to A. during his life; and from and immediately after A.'s decease, and the payment of the debts and legacies, the testator devised the estate to the heirs of the body of A., and in default to his own right heirs-Held, that the trustees did not take a legal fee-simple estate absolute, but determinable upon the death of A., and payment of the debts and legacies. Held also, that the estate for life of A. being an equitable estate, and the estate in remainder to the heirs of his body being a legal estate, the rule in Shelley's case did not apply.

Held also, that the conveyance by the trustees to A., after payment of the debts and legacies, of the legal estate for

[blocks in formation]

But if it did so operate at law, the conveyance of the legal estate by the trustees was a breach of trust, and void in equity.

Further consideration.-This bill was filed to enforce the specific performance of a contract by the defendant to purchase from the plaintiff, for the sum of 20501., a freehold estate called the Windy Fields property, situate in the county of Stafford. Several questions were raised upon the title, but the only one calling for a report was as to the validity of a recovery suffered by the present plaintiff in the year 1830, to bar the estate tail, limited by the will of James Collier.

James Collier, deceased, by his will dated the 23rd May, 1827, among other things, devised the estate in question to his brother Joseph Collier, and his sister Hannah Collier, their heirs and assigns, and to the survivor of them and his or her heirs, upon the several trusts, and to and for the several uses, ends, intents, and purposes thereinafter mentioned and expressed of and concerning the same-that is to say, upon trust that they, the said Joseph Collier, Hannah Collier, and their heirs, and the survivors of them and his or her heirs, should stand seised of the same for and during the term of the natural life of his brother William Collier (the plaintiff), and also until the whole of his just debts, and all interest due or to grow due thereon, together with the following legacies, should be fully paid off and discharged to, for, and upon the several uses, trusts, ends, intents, and purposes thereinafter mentioned-that is to say, upon trust to set and let the same, and to pay and apply the rents, issues, and yearly profits thereof, and the value of whatever tim ber might be considered at its just growth, from time to time in further discharge of his just debts, and of all interest due or to grow due thereon until the same should be fully paid off and satisfied; and upon further trust to pay and apply the rents, issues, and yearly profits thereof from time to time, in discharge of, and until certain legacies given by, his will should be paid and discharged; and from thenceforth upon further trust to pay over from time to time the rents, issues, and yearly profits of the said premises unto his said brother William Collier or his assigns, for his use and benefit for the term of his natural life; and from and immediately after the decease of his said brother and the payment of all his said just debts and the said legacies, together with all expenses which his said trus tees, or either of them, might be at or put unto in the execution of his will, he did thereby give and devise his several real estates unto the heirs of the body his said brother William Collier, lawfully to be begotten; and for default of such issue, then he gave and devised the same unto his own right heirs for

ever.

The plaintiff was not the heir-at-law of the tes tator.

By indentures of lease and release, dated the 4th and 5th June, 1830, and made between the said Joseph Collier and Hannah Collier of the one part, and the plaintiff of the other part, after reciting (inter alia) that all the debts of the testator, and the legacies be queathed by his will, had been fully paid, and satis fed, and discharged, and reciting that the plaintiff ha applied to and requested the said trustees to releas the said real estate to him for the term of his natural life, which they had agreed to do, it was witnessed that the trustees released the said estate unto, and the use of, the plaintiff for and during the term of his natural life, and for no other use, intent, or purpose whatsoever.

By indentures of lease and release, dated the 23rd and 24th June, 1830, and made between the plaintiff and his wife of the first part, Thomas White of the second part, and Walker Sedgley of the third part, the plaintiff conveyed the estate unto and to the use of Thomas White and his heirs, to make him a perfect tenant to the præcipe, in order that a recovery might be suffered to enure to the common uses to bar dower in favour of the plaintiff; and a recovery was afterwards duly suffered.

On the 21st October, 1862, the plaintiff and the defendant entered into a contract for the sale and purchase of the fee-simple of the estate for 20501.

The plaintiff furnished an abstract of his title, and on the 21st November, 1862, the defendant delivered requisitions upon title. The seventh was in the following terms:-" William Collier, under the will, takes only a life interest in the property, and the trustees seem to have exceeded their duty in conveying to him the estate vested in them, and which, in equity, might properly be held not to bar the issue in remainder. The son of William Collins is required to concur in the sale."

The plaintiff's son refused to concur in the sale, and the defendant refusing to complete without his concurrence, this bill was eventually filed to enforce specific performance. The usual reference had been made to chambers, and the chief clerk had referred the question upon the construction of the testator's will, for the decision of the Court.

Selacyn, Q. C., and Jervis, for the plaintiff.-Under the devise contained in the will of the testator to Joseph Collier and Hannah Collier, their heirs and asigns, the legal estate in fee-simple in the property was rested in the trustees, and the subsequent limitations conferred equitable estates only in the plaintiff for life, with remainder to the heirs of his body; and by virtue of the rule in Shelley's case, the plaintiff became entitled as equitable tenant in tail, which equitable estate tail was effectually barred by the recovery suffered by the plaintiff, and converted into an equitable estate in fee-simple; and the legal estate in fee-simple, which was by the will vested in Joseph Collier and Hannah Collier, having by means of the indentures of lease and release of the 4th and 5th June, 1830, become Tested in the plaintiff, he was able to make a valid conveyance to the purchaser, without the concurrence of his son. (Lady Jones v. Lord Saye and Sele, 8 Vin. Ab. 162; Doe d. White v. Simpson, 5 East, 162; Doe d. Tomkyns v. Willan, 2 B. & AI. 84; Pond v. Watson, 6 El. & Bl. 606). But if the trustees took only a legal estate for the life of the plaintiff in trust for him, and the devise over after the decease of the plaintiff, to the heirs of his body, conferred a legal estate in tail in remainder; then such legal estate for the life of the plaintiff, having by means of the indentures of the 4th and 5th June, 1830, been effectually vested in the paintiff, the subsequent recovery suffered by him Worked at law the destruction of the legal limitation the heirs of the body of the plaintiff, inasmuch as it was a contingent remainder, and the will conlained no devise to trustees to preserve contingent remainders.

Cole, Q. C., and Ince, for the defendant.-Under the will of the testator the trustees took only an estate for the life of the plaintiff, with a superadded chattel Interest, or an estate in fee determinable on the death of the plaintiff, and the payment of the debts and legacies. The gift over to the heirs of the body of the plaintiff, passed the legal estate, and consequently the estate for life of the plaintiff, being an equitable estate, and the estate limited to the heirs of his body being a legal estate, the rule in Shelley's case had no application, and the plaintiff took under the will an

estate for life only, and therefore the recovery suffered by the plaintiff did not operate to bar the entail, and the gift over would still operate. (Ward v. Burbury, 18 Beav. 190; Doe d. Kimber v. Cafe, 7 Exch. 675; Silvester d. Law v. Wilson, 2 T. R. 444; Ackland v. Lutley, 9 Ad. & El. 879; Glover v. Monckton, 3 Bing. 13; Adams v. Adams, 6 Q. B. 860; Coape v. Arnold, 4 De G., Mac., & G. 574; Heardson v. Williamson, 1 Kee. 33; Doe v. Barthrop, 5 Taunt. 382). If the recovery suffered by the plaintiff had any operation at law, it was void in equity, as founded on a breach of trust; and a court of equity would so deal with the legal estate as to prevent the heirs of the body of the plaintiff, or the heir of the testator, from being prejudiced. (Mansell v. Mansell, 2 P. Wms. 676).

Selwyn, in reply, cited Brydges v. Brydges (3 Ves. 120).

May 26.-Sir J. ROMILLY, M. R.-The question in this case is, whether the plaintiff has shewn such a title that he can compel the specific performance of the contract entered into by him for the sale of the fee-simple in the estate to the defendant.

The question depends upon the validity of a recovery suffered by the plaintiff in 1830; and whether it vested an indefeasible estate in fee-simple in the vendor. This question depends upon what estate the trustees took under the will of the testator. The devise is to them and their heirs during the life of the plaintiff, and until certain debts and legacies should be paid.

On the part of the vendor it is contended, that under this devise the trustees took a legal estate in fee-simple; but I am of opinion, that if the estate vested in them was a fee-simple estate, nevertheless it was determinable upon the decease of the plaintiff, and the payment of the debts and legacies, which happened in 1830. These were the sole purposes for which the legal estate was vested in the trustees, and when they were performed the estate was divested out of them. This is established by Ackland v. Lutley (9 Ad. & El. 879); Doe d. Kimber v. Cafe (7 Exch. 675); and other cases which were cited to me.

The result of so holding is important, as it follows, that the estate limited to the heirs of the body of William Collier, the plaintiff, is a legal estate, and consequently would not coalesce with the life estate of the plaintiff, which was an equitable estate, so as to bring it within the rule in Shelley's case. of Tippin v. Cosin (1 Fearne's Cont. Rem. 43, 52) and Lady Jones v. Lord Saye and Sele (8 Vin. Ab. 162) establish this.

The cases

Hence it follows, that unless the conveyance by the trustees of the legal estate for life enabled the plaintiff to suffer a recovery, the recovery suffered in 1830 is invalid. I am of opinion that the conveyance of the legal estate by the trustees for the term of the plaintiff's life could not enable him to bar his issue, or the right heirs of the testator.

There are two reasons for so holding. If an equitable estate for life is vested in A., with a legal remainder to the heirs of his body, and, by a separate instrument, a legal estate for life is vested in A., the legal estate so vested in him will not coalesce with the legal remainder, so as to defeat the rights of the remainderman. But if the legal estate thus acquired could merge in the estate in remainder, such a conveyance by the trustees would be a breach of trust on their part, and would not operate in equity. legal estate was vested in the trustees, to continue in them until the debts and legacies were paid, and until the death of the tenant for life, and then it became vested in the heirs of the body of the plaintiff, or the right heirs of the testator. The object of this peculiar form of devise was to prevent the necessity of

The

interposing trustees to preserve; and the trustees charge." Mr. Massey had been the solicitor employed could not in equity defeat the estates in remainder, by the directors during the period of their attempts to by conveying to the plaintiff the legal estate for his form the company. life.

A meeting of the directors was held on the 5th DeAt all events, the question is far too difficult a one cember, 1864, at which a letter from Mr. Waters was to authorise this Court in compelling specific perform-read, and what took place at that meeting is mentioned ance of the contract, and the bill must be dismissed, with costs.

in Mr. Massey's affidavit:-" At this board meeting the directors asked me to have my bill of costs ready by next meeting. I stated to the effect that it would be a long bill, and I could not prepare a regular bill of costs in so short a time; and the directors then said at once, and wished me to send in by next meetthey thought it desirable to close the whole matter

Re MASSEY.-May 8, 9, and 29. Taxation—Third party clause—6 & 7 Vict. c. 73, s. 38. Where a bill of costs cannot be taxed under the third party clause, as against the solicitor, it cannot be taxeding the total sum claimed by me for costs, withas against the party who has paid it. proper course is to file a bill.

The

This was a summons, adjourned from chambers, for the taxation of a solicitor's bill of costs under the third party clause (6 & 7 Vict. c. 73, s. 38).

The facts are fully stated in his Honor's judgment.
Selwyn, Q. C., and Eddis, in support of the sum-

mons.

Baggallay, Q. C., and Osborne Morgan, for the directors of the company.

E. R. Roberts, for Mr. Müller.
Jessel, Q. C., for Mr. Massey.

Re Jessop (32 Beav. 406); Re Baker (Id. 526); Ex parte Dickson (8 De G., Mac., & G. 655); Re Harrison (10 Beav. 57); Re Wells (8 Beav. 416); Re Fyson (9 Beav. 117); and Re Barrow (17 Beav. 547), were cited, and commented upon, in the course of the argument.

May 29.-Sir J. ROMILLY, M. R.—This is a summons, taken out by a gentleman of the name of Waters, to tax a bill of Mr. Massey, one of the solicitors of this court.

[ocr errors]

out any bill; which I agreed to do. At the adjourned meeting of the directors, which was held on the 12th December, 1864, I submitted to the directors my report of liabilities incurred by and on behalf of the company; which report included one item of 13007., as due to my firm from the company for professional services, but no bill of costs was ever delivered by me or my firm."

What took place at the meeting of the 19th December is thus stated by Mr. Massey:-" All the accounts were read, examined, and audited, with the exception of my own professional charge; and I was asked to reconsider and revise it; and when I was now asked to revise my charge, I stated to the board, that if they wished e to make out a formal bill of costs, I would do so; but that if I were to make it out with a view to taxation, it would require time, as I should myself have carefully to go through the bill, and make it full in every respect; and I explained that the reason for this was, that all the difference the Taxing Master would make in the bill would be against me. The directors said they did not wish me to make out such a bill, but would be quite satisfied if I would give them what would serve as an explanation of the services charged for. I agreed to do this, but said it must be quite understood, that if before payment they wished to tax my bill, I was not to be prejudiced by handing in an informal and incomplete document. I was ther leaving town for Christmas; and on the 22nd December I sent to the chairman, Mr. Varner, a letter inclosing this document, which is not a bill of costs. but an extract from my diary, with a few additions and which, I presume, is the bill now sought to taxed by Sampson Waters, and which document now produced and shewn to me marked A.”

Waters and Müller were the owners of some mining property in Chili; and they endeavoured, with the assistance of Mr. Bunting, solicitor in Manchester, to form a limited joint-stock company, for the purpose of purchasing this property, and working the mines, They entered into an agreement for this purpose with the persons forming the board of directors, of which Waters and Müller were both members; and after various ineffectual attempts to form a company, on the 16th September, 1846, Messrs. Waters and Müller signed the following guarantee:-"Mr. Waters and Mr. Müller authorise the Chilian Mining and Trading Company (Limited) to add to their prospectuses and to any advertisements they may issue, a clause, stating This is the bill of costs. It contains no entries of that, in the event of no allotment being made of shares sums against the items which appear in it. Adjourne. in the company, the deposit moneys paid on application meetings of the directors were held on the 21st De should be returned intact." The meaning of that is, cember, 1864, and on the 4th January, 1865, at whi that Waters and Müller jointly take upon themselves, Mr. Massey gave various explanations as to the natur in the event of no allotment being made, all liability of his work, and the proper and fair mode of re in respect to preliminary expenses, whether for soli-neration; and at this last meeting, the meeting on th citors, or brokers', or agents' charges, or advertising or otherwise; and, as between Mr. Waters and Mr. Müller, the liability shall be shared in the same proportion as their respective purchase moneys bear to the whole of the purchase moneys of the two mines. Their exertions continued, but it was at last found to be impossible to establish the company; and on the 23rd November, 1864, the directors resolved to abandon the attempt, and to return the deposits to the subscribers. This rendered Waters and Müller jointly liable to the directors to pay the expenses that had been incurred. Waters acquiesced in these proceedings; and on the 26th November, 1864, he wrote to In this state of things, Mr. Waters insists that the directors, and after expressing his sense of their directors were trustees for him, and that he is entitl exertions, ended his letter in these words:-"I shall as against them, to require that he shall only be co be obliged by your sending me an account of the ex-pelled to pay the directors what they were lawful penses to which I and Mr. Müller are liable under the liable to pay Mr. Massey; and he has taken out th agreement of September last, for examination and dis-summons for the purpose of having the bill taxed.

4th January last, it was resolved unanimously by th directors, that Mr. Massey's charge for 13001. for pro fessional services, including disbursements, having be considered, the board directed that to be paid; aral was paid accordingly. During the whole of this t Mr. Waters was a director, and had notice of the meetings, and the purpose for which they were be and he might have attended them; but I do not Li that any notice was given to him that the directintended to pay Mr. Massey a sum of money in f.. discharge of his claim without having the bill take or without having any proper bill delivered.

The first question is, whether the bill can be taxed as against Mr. Massey, and I am of opinion that it cannot. I so expressed myself at the time of the argument; and I stopped Mr. Jessel on this point. Mr. Massey was retained by the directors, and not by Mr. ¦ Waters. The directors were Mr. Massey's clients, and Mr. Waters was not. It was, therefere, quite competent to the directors, who were the clients, to settle with Mr. Massey the amount of his bill. They took from him an account of the entries in his day-book and diary, with the charges left in blank; they received and listened to his explanations; and after having done so they agreed to give him 13004. in full satisfaction of his claim. I am of opinion that clients are bound by a proceeding of this description, and that they cannot require the delivery or taxation of any bill from Mr. Massey after this.

The next question is this:-Can Mr. Waters, in this state of circumstances, require the bill of Mr. Massey o be taxed, as against the directors, who have paid it, r can he require a new bill to be delivered and taxed? There is no question but that he can do so in a proper proceeding for that purpose. I see nothing amounting to acquiescence on his part, in the course that has been adopted by the directors, nor do I think he was bound by their acts, although he was a director, and had notice of their proceedings; and if a bill were filed by him, and the facts not varied from what they appear, I am of opinion that he would be entitled to an account of the moneys properly paid by them on his account or for his use, and that in such a proceeding the directors would have to prove that the sum of 1300% paid by them was properly paid; in other words, in my opinion a bill from Mr. Massey would have to be submitted to be moderated by the Taxing Master, and the amount at which the Taxing Master would fix it would be all that Mr. Waters would be required to pay the directors.

But that does not determine the question that was argued before me, which is, whether, under the 38th section of the Solicitors' Act, where a bill cannot be taxed against the solicitor, it can be taxed against the trustees of the applicant who have paid it? The words of the section are these:-" Where any person, not the party chargeable with any such bill, within the meaning of the provisions herein before contained, shall be liable to pay, or shall have paid, such bill, either to the attorney or solicitor, his executor, administrator, or assignee, or to the party chargeable with such bill as aforesaid, it shall be lawful for such person, his executor, administrator, or assignee, to make such application for a reference for the taxation and settlement of such bill as the party chargeable therewith might himself make; and the same reference and order shall be made thereupon, and the same course pursued in all respects, as if such application was made by the party so chargeable with such bill as aforesaid: provided always, that in case such application is made when, under the provisions herein contained, a reference is not authorised to be made, except under special circumstances, it shall be lawful for the court or judge to whom such application shall be made, to take into consideration any additional special circumstances applicable to the person making such application, although such circumstances might not be applicable to the party so chargeable with the said bill as aforesaid, if he was the party making the application." The words of this clause are to my mind a little obscure; but it seems to point to the case only of the taxation of the bill against the solicitor; and it does not seem to give any jurisdiction under this act against the trustees to dispense with a bill in equity. Certainly, several orders to that effect have been made by me, but they seem to have been consented to, so far as ju

So.

risdiction was concerned. In Re Fyson (9 Beav. 119), Lord Langdale observed, in these words:" First, it is to be observed, that the petitioner has fallen into a mistake, which has been of very frequent occurrence; mortgagees think, that when they call for a taxation of a mortgagor's solicitor's bill, they have a right to alter the relation of solicitor and client, and are not bound to pay more than the mortgagees could establish as against them, the mortgagors. There is nothing in the act of Parliament which warrants this notion, and it is not The bill may be taxed at the instance of the mortgagor, who is liable to pay it; but it is the bill between the mortgagee and his solicitor; and the mortgagor desiring to tax it, must do it on the condition of paying what is due to the solicitor from his client, the mortgagee, which, possibly, may be more than the mortgagee, if he had paid it, could have recovered over from the mortgagor. The mortgagor asking taxation against the solicitor, has merely the right to tax the bill as between the solicitor and his client, the mortgagee."

If, therefore, Mr. Waters can only stand in the place of the directors under that statute, which seems to be the effect of Lord Langdale's words, I am of opinion that he cannot tax this bill, because the directors themselves could not have taxed it, as it is impossible to point out any special circumstances which would entitle them to do so. The observations of the Master of the Rolls shew, that except as against the solicitor, sect. 38 does not apply.

And, again, in Re Harrison (10 Beav. 60), Lord Langdale, M. R., makes this observation:-"This petition is also misconceived in this respect; it proceeds on the notion that a mortgagor having settled an account with the mortgagee and paid the bill of the mortgagee's solicitor, is entitled, in this jurisdiction by petition, to quarrel with the account so settled, and tax the costs of the solicitor, not as between him and his client, the mortgagee, but as between the mortgagor and the mortgagee; and, further, that if charges be found in the bill of costs, which the mortgagee could not maintain in an account between him and the mortgagee, they are to be disallowed. Such a notion is entirely erroneous, and so much of this petition, as depends on this point, falls to the ground."

It is true, that this case, in Re Harrison, has been very strongly disapproved of by all the judges in the Court of Exchequer in Re Deardon (17 Jur. 993), but not on this point, which did not arise before them at law; and the same principle was enunciated by Lord Justice Turner, in the case of Ex parte Dickson (8 De G., Mac., & G. 655). I can find no case that lays down the opposite rule, unless it can be gathered from my decision in Re Jessop (32 Beav. 406) and in Re Baker (Id. 526); but so far as my observations, which fell from me in those cases, may be construed to establish that a bill can be taxed under the 38th section against the trustees, without the solicitor having any interest in such taxation, I am of opinion that they give a wider extension to the scope of the 38th section than the words of the section seem to warrant, when examined in conjunction with the cases I have referred to. At the same time, it cannot but be evident that the effect of the decisions is to reduce the 38th section to a narrow operation; for all the cases concur in this-the cestui que trust can only tax the solicitor's bill as his clients, the trustees, could; and if they knowingly, and after having good time to consider the bill, thought proper to pay it, unless some of the items in it are fraudulent in the strict and criminal sense of the term, the trustees are precluded from taxing the bill, however improper it may be, short of containing such fraudulent items; it which case the cestui que trust is necessarily driven to his bill in equity

which answer this description. (Bradshaw v. Bradshaw, 3 Sim. 286).

to obtain relief. I consider, however, that I am bound by the decisions to which I have referred, and, accordingly, I dismiss the summons. As, however, this is a case in which the amount to be paid is the only matter in dispute, which ought to be settled without the tedious and expensive course of a bill in equity, Iv. Wilson, 9 Sim. 526). This subpoena would be used shall dismiss the summons, without costs.

Note for reference-Morg. Ch. Acts, 16.

Hanson, for the defendant Steer. The subpoena is irregular in form, and the description general, which should have been particular. (The Attorney-General

for the purpose of interrogation and discovery, which the claimant ought to obtain by direct means. There is even no allegation that these documents are in the defendant's possession (Selby v. Frazer, 5 Weekly Rep. 341); besides, these were the lettters of living perVICE-CHANCELLOR KINDERSLEY'S COURT. sons, and can be of no use in proving questions of

NEWLAND V. STEER.-July 6.

pedigree.

Glasse, in reply.-These are new objections; the Practice-Production of documents-Sufficiency of de- defendant is bound to rely on those which he raised scription-Proceedings in chambers.

before the chief clerk.

Sir R. T. KINDERSLEY, V. C.-The questions to be Upon an inquiry in chambers to ascertain the next of kin decided in this case are well understood. This is a of a person dead, partially intestate, one of the claim- bill by a legatee against the legal personal representaants, not a party to the suit, served upon the defendant, tive; and there being an intestacy as to part of the the administrator, and also one of the claimants of kin- property, the decree directed an inquiry, to ascertain ship, a summons to attend for examination, and a sub-who were the next of kin. Among the persons who poena duces tecum to compel him to produce all letters from persons named in the subpana, to the intestate, and other documents; the defendant admitted possession of some such letters and documents, but declined to produce them:-Held, upon motion, that without deciding whether the description was too general, this was an improper mode of attempting to obtain evidence to support

the claim.

Motion. This was a suit for the administration of the estate of Elizabeth Bayley, by a legatee under her will; as to part of her property there was an intestacy, and the defendant Lee Steer had taken out administration with the will annexed, and also claimed to be her next of kin ex parte maternâ. A decree was made in the suit, by which an inquiry was directed as to who were the next of kin of Elizabeth Bayley.

The present motion was made by Miss Bartleet, not a party to the suit, but who had filed a claim in chambers, to come in as one of the next of kin of the intestate ex parte maternâ. In prosecution of this claim she filed a subpoena duces tecum on the defendant Steer to attend before the examiner, and to produce "all letters written and sent to the late Elizabeth Bayley by Henry_Bayley, Robert Bayley, Richard Bayley, Eleanor Bayley, Lavinia Frances Bartleet, and several other persons by name, "or any other member of the Bayley, Maude, or Metcalfe family. All family bibles belonging to the said Elizabeth Bayley, and all other letters, papers, and documents relating to or concerning the family or ancestors of the said Elizabeth Bayley on the paternal side." Steer attended, and stated on examination that there had been discovered among the property of the intestate a very large mass of documents and letters, the greater part of which he had examined, and had, after examination, destroyed. He admitted that he still had some letters written by the persons mentioned in the subpoena; that he had found also some bibles which had been given to persons to whom they were bequeathed by the deceased. The witness, however, acting upon advice, declined to produce any of the matters mentioned. The present motion was, that the defendant Steer should produce the several letters written and sent to Elizabeth Bayley by Mary Bayley, Robert Bayley, &c., or any other member of the Bayley, Maude, or Metcalfe family, mentioned in the subpoena duces tecum."

Glasse, Q. C., in support of the motion. - The claimant has adopted the only mode in her power for obtaining evidence of her kinship in this suit; the description of the letters is sufficiently particular, taken with the defendant's admission, that he has letters

come in under this direction is the present applicant, who, in order to support her claim as next of kin, ex parte maternâ, applies to examine the defendant Steer, who is also a claimant, as next of kin ex parte paternâ, and serves him with the subpoena duces tecum It is true that the motion is not quite so extensive in terms as the subpoena, but substantially it is the same. In point of fact, therefore, whatever be the form of proceeding, this is an endeavour to obtain discovery by the production of these documents.

Even assuming that this claimant has, as between herself and the legal personal representative, a right to this discovery-and in so doing I am assuming a great deal-yet the proper mode would be by applying at chambers, to obtain an affidavit from the defendant as to what those documents are; for her only right can be to see such of them as would tend to establish her title. Here, however, there are several claimants; each stands on his own right, to be supported by his own evidence, and none of them has a right to see the evidence adduced by another. I think the principle must be the same where the conflict is between single claimant and the legal personal representative, who is the nominee of the Crown. It has always seemed to me, that the executor or legal personal representative may very justly assist a claimant who seems to have a reasonable case; and I think the tendency in chambers is to do this.

This, however, is a very different case, and I do not decide it on the mere narrow ground, whether or no, as between this claimant and the witness, the subpoena is too general, but on the ground that this is not the proper way of proceeding in such a case, but is an attempt to obtain by a side wind that which ought to have been applied for by affidavit in chambers, in the regular course.

VICE-CHANCELLOR WOOD'S COURT. THE ATTORNEY-GENERAL v. THE MAYOR, ALDEEMEN, AND BURGESSES OF THE BOROUGH OF KINGSTON-UPON-THAMES.-June 2, 9, 10, and 13. Nuisance-Injunction-Quia timet-Navigable river. The Court will not interfere, quia timet, in a case of alleged nuisance, but the actual existence of the nuisance mes be proved.

Therefore, where an information was filed to restrain the pollution of a navigable river by an increased discharg of sewage into it, but the evidence failed to shew that a nuisance had actually arisen, the Court dismissed the information, without prejudice to any further proceed

« 上一頁繼續 »