SUPREME COURT. { CULLEN AND HOLLAND V. CHAMBERS } EQUITY. and having lent money, with nothing but personal security, would be ordered to bring the money into Court Widdowson v. Duck, 2 Mer., 494 Holmes v. Dring, 2 Cox, 1 Walker v. Symonds, 3 Swans., 63 Grant v. Mills, 2 V. & B., 309 Norden v. Levit, 2 Lev., 189 Hosier v. Lord Arundel, 3 Bos. & Pul., 7 Sparkes v. Restal, 22 Beav., 587 Bac. Ab., 510 Seton on Decrees, 104 Adye v. Feuilleteau, 1 Cox, 24 Styles v. Guy, 1 McN. & G., 422 Hicks v. Hicks, 3 Atk., 274 Grant v. Grant, 34 Beav., 623 Down v. Ellis, 35 Beav., 581 Raby v. Ridehalgh, 7 De G., McN. & G., 108 Waite v. Whorwood, 2 Atk., 159 Piety v. Stace, 4 Ves., 622 Hancom v. Allen, 2 Dick., 498 Wheldale v. Wheldale, 16 Ves., 376 Calverley v. Williams, 1 Ves., 212 Regina v. Caledonian Rail. Co., 16 Q.B., 28 Cook v. Collingridge, Jacob, 619 Campbell v. Walker, 5 Ves., 680 Sanderson v. Walker, 13 Ves., 602 Godson v. Good, 6 Taunt, 594 Calder v. Rutherford, 3 Brod. & B., 302 SUPREME COURT. {.CULLEN AND HOLLAND V. CHAMBERS AND OTHERS. Richardson v. Horton, 6 Beav., 185 Vez v. Emery, 5 Ves., 140 Manning v. Purcell, 7 De G., McN., & G., 55 13 December EQUITY. Ingleby and Belt, for defendant John Chambers.—The decree was pronounced on the 7th of November, 1862, the conduct of the suit being then left in the bands of Mrs. Chambers and her attorney Mr. Cullen, and from that time, with the exception of making Mrs. Newman and Mrs. John Chambers parties, no step whatever was taken till 1867, when Mr. Chambers, the defendant, was suddenly called upon for an account. The facts relied on by the plaintiffs were only alleged in their bill, but not proved; and the bill is wrong in form. It was not proved that there was any balance of Finke's estate which the defendant received as executor, and therefore he was relieved from taking any trouble to prove that it was not the fact. The bill charged that the defendant was continually requested to file accounts, and he did not do so; but while there was a decree standing to take the accounts in the ordinary manner, there could not be a decree made directing them to be taken in any different way. If in consequence of subsequent events it was desired to charge wilful default, the one and only mode in which that could be done was by a supplemental bill, in the nature of a bill of review. It was impossible that there could be two decrees subsisting at the same time founded upon different bases-one upon taking of accounts in the ordinary way, and the other upon taking the accounts with a wilful default— Hodson v. Ball, 1 Ph., 177 Wilson v. Todd, 1 M. & C., 42 1 Smith's Ch. Practice, 808 & 816 The facts stated and relied on by the plaintiffs were not such facts as could be introduced into a bill which was a supplemental bill. A supplemental bill was in aid of the decree which the Court had given. A supplemental bill in the nature of a bill of review was nothing of the kind, but was to supplant the former decree. The SUPREME COURT. CULLEN AND HOLLAND V. CHAMBERS EQUITY. allegations and prayer of the bill are utterly inconsistent with the original bill, and the accounts of Mr. Chambers might have been taken before the Master on the usual supplementary decree— Seton on Decrees, 111 Cur. ad. vult. 23 May GWYNNE, J., after setting forth the facts as before detailed, delivered the judgment of the Court as follows:-"On the hearing numerous objections were urged by the defendants' counsel to the form and scope of the bill, and the Court have felt great difficulty what course should be adopted. We were unwilling to deal with the suit on mere technical grounds, and suggested that a certain deed should be made by consent, but unfortunately that suggestion failed of any good result. We conceive that the present bill must be considered a bill of revivor and supplement; but such a bill in its separate parts must be framed and proceeded upon in the same manner as if it were not compounded-(Mitford's Equity Pleading). Now it is obvious that before the plaintiffs, Messrs. Cullen and Holland, can have the benefit of the original suit it must be revived, and that they must, therefore, become parties to it. The present bill, however, although it shows by averment the marriage of Mrs. Newman, a plaintiff in the original suit, to Mr. Peake, and the assignment by an antenuptial settlement of all her interest in the subject-matter of her suit to the present plaintiffs, yet the plaintiffs do not point to the fact that the original suit has abated nor found any charge on the facts creating the abatement, nor does the bill contain any prayer that the suit may be revived. It appears, therefore, to us that we cannot upon the present record decree that the cause ought to be revived, and stand in the same condition with respect to the parties in the present bill as it was in with respect to the parties to the original bill at the time the abatement happened. Then, again, if we regard the present bill as an original bill or a supplemental bill merely, we cannot see with what propriety the plaintiffs can without any special equitable grounds separate themselves from the other plaintiffs in the original bill. Their interests do not conflict, SUPREME COURT. CAMPHUYNDER V. SWINDEN. COMMON LAW. and why therefore are they on different sides of the record? It would appear that if such a course were open to the plaintiffs in the supplemental bill it would be equally open to each of the other plaintiffs in the original bill, so that the defendants would be vexed with some four or five suits. We need scarcely say that such a course would be most oppressive and unjust to the defendants. There are several minor informalities which might be pointed out, such as continuing Mrs. Peake as a party, joining Mr. Peake as a defendant, and adding Mrs. Chambers, who was no party to the original bill, as a defendant; but these matters might be disposed of by amendment. On the ground, however, that the bill on the face of it shows that the suit has abated, but founds no charge on the facts causing the abatement that it ought to be revived, nor contains any prayer to that effect-in other words, makes no case for reviving the suit-we are of opinion that no decree can be pronounced on so defective a record. As, however, the objection—if indeed it can be said to be taken at all—was taken only on the hearing, we think the bill must be dismissed without costs." Bill dismissed. HANSON, C.J., GWYNNE, J., WEARING, J.] [COMMON LAW. 28 MAY, 1871. CAMPHUYNDER V. SWINDEN. MISDIRECTION.-Local Courts-Costs. It is not misdirection in a Special Magistrate, on the trial of a cause in a Local Court, to explain to the jury the effect by virtue of the Local Courts Act, 1861, of the amount of the verdict in limiting or increasing costs. Local Courts have no power to award costs on a scale higher than the verdict would under the Act carry. THE action, which was slander, had been tried in the Local Court of Riverton before a Special Magistrate and jury of four. SUPREME COURT. CAMPHUYNDER V. SWINDEN. COMMON LAW. Palmer, on behalf of the defendant, moved for a new trial on the ground of misdirection. The jury, after having retired to consider their verdict, returned into Court, and asked what amount would carry costs; the Special Magistrate explained to them that with a verdict under £5 the fees would be allowed on the lowest scale, and no attorney's fees, and that other verdicts carried higher fees according to a scale which he stated. Objection to the course pursued was taken, but the Magistrate said that the Court was formed of the Special Magistrate and the jury; and he could inform the jury of the provisions of the law with respect to costs. The jury retired again, and after an interval returned with a verdict for £10; and as Mr. Way, who appeared for the plaintiff, pointed out that that would not be sufficient to cover all the costs the plaintiff had incurred, the Special Magistrate put the question to the jury, and the jury decided that the costs should be on the highest scale, although it was urged that the Court was acting in excess of its jurisdiction. Way, for the plaintiff, intimated that he abandoned the costs on the higher scale. HANSON, C.J.-Is there any authority which shows that it was a misdirection of the Magistrate to tell the jury what he did? Palmer-I have none at present; but it has been ruled that it was not within the province of a Judge so to direct a jury. GWYNNE, J., said that when a jury had asked him as to costs he refused to tell them, as what they had to form their conclusion upon was the facts of the case; but he did not consider there had been any misdirection. HANSON, C.J.-The verdict will be for £10, and costs upon the corresponding scale. |