LIND r. THE ISLE OF WIGHT FERRY COMPANY. spoke of having some estate and interest in the property they have taken and paid the 2001. for that large portion which lies at the head of the whole proceeding that portion is under water, which the parties dispute the plaintiffs having any right to at all; and cases have been cited to show that where there is a clear and honest dispute of right the Court will not interfere, but will leave the party to his remedy by ejectment when the defendants say he has no legal title whatever, and has no right to be heard to complain of an admitted seizure of his property without compensation. I stated, before I heard the reply, that, considering the notice which had been given, and considering the degree of interest which had been allowed to exist in the plaintiffs, 1 should, if the matter had been a recent matter, have taken care, if the Company had taken possession of the land, or were about to take possession of the land, to have interfered to prevent the possession being continued until the right was put in some course of trial, either by a jury, or by means of an action of trover, or whatever is the proper course, in order that the plaintiffs' right might be preserved. The facts are these: All this was done two or three years before the filing of the bill. The work was going on in August, 1859, and a portion of this very work, which was destroyed by a storm, had been carried on upon the land which the plaintiffs now say they find out is land not included in the notice, and they deny positively any representations whatever which induced the plaintiffs to believe that it was land taken under the notice. They say something more, which is denied by the plaintiffs. They say that the plaintiffs watched their proceedings, and were well aware of all that was going on. The plaintiffs deny that; but I do not think it material. Those who are anxious to preserve their rights are bound to look after their rights. One witness says that it is difficult, not easy, for an unpractised eye to say whether or not the land in that direction was included in the notice, or whether it traversed that direction. The answer is, that those who watch after their rights are supposed to employ competent persons with practised eyes to look after those rights. A great part of the plaintiffs' complaint is this: "If you take our original land, it will not so much signify to us as it now does, in consequence of what you are doing, because by bringing the head as it now stands nearer to the old pier than you would have done if you had put it in the original position, a great mischief is created." Surely that is a thing which must of all others be apparent to the eye, whether the head of the pier or whether the line was approaching nearer to the old pier than by the plan delivered and the notice delivered. It appears to me that the plaintiffs came too late to seek a remedy by way of injunction to stop that being done which they have stood so long by seeing done, and as to which their rights at law will not be prejudiced by that delay. They will be able to bring ejectment just as well as before. The question is, whether this Court, on the principle that it will not allow Companies to exercise rights conferred by Parliament in a manner which would be oppressive, will interfere until everything has been ascertained that is right between the parties interested. That being the question, I have now to consider whether I ought to interfere on a bill filed in Dec., 1859, to prevent that which had for a considerable time previously been done, and as to which the plaintiffs might have long before even tried their legal right by bringing an ejectment. I do not think the case rests even here. I observe with some surprise after the filing of the plaintiffs' bill, that the plaintiffs take the law into their own hands. They do not apply to the Court for an injunction, but after the filing of the bill in last year, 1861, the plaintiffs proceeded summarily to interfere with the works which the defendants were executing, and to destroy a certain portion of these works, as to which an action for trespass is now pending. Now, ought this Court, if the plaintiffs take the law into their own hands, and do not apply for an injunction, but destroy the works of the Company in 1862, no injunction having been applied for, to help the plaintiffs? It seems to me plainly not. They have chosen their remedy. Therefore this is not a case in which the Court ought [not] (1) to interfere by injunction. The bill *seems to fail upon all points. After referring to the facts of the case as bearing upon the question of costs, the VICE-CHANCELLOR said, I think, upon the whole, that I am bound to dismiss the bill with costs. Ordered accordingly. HODSON v. CARTER (2). (7 L. T. N. S. 504; S. C. 1 N. R. 179.) A contract for the sale of real estate had been entered into, but before its completion the vendor died intestate, leaving an infant heir-at-law: Held, that in a suit instituted by a purchaser for specific performance of the contract, no costs of suit would be given on either side. Otherwise, if the estate had been devised by the will of the vendor. A BILL had been filed by a purchaser against the infant heir of a vendor who had died before the contract of sale was completed, to have specific performance of the contract decreed. On the cause coming on for a hearing, (1) Sic by a manifest error. p. 253, as to the effect of the Con- LIND ". THE ISLE OF WIGHT [ *419 ] 1862. Dec. 13. WOOD, V.-C. [ 504 ] Nalder, for the plaintiff, asked for the usual decree with costs as against the defendants. Jolliffe, for defendants, contended that in such a case costs were never given, and referred to Purser v. Darby (1). The VICE-CHANCELLOR said, that where the difficulty had been occasioned by the vendor himself devising the property, costs of such a suit had been given as against his estate. In the present case, however, the vendor had died intestate, leaving an infant heir. This was the case of a common misfortune, and each party must bear his own costs of the suit. 1862. Dec. 9, 12. WOOD, V.-C. [ 526 ] BORD v. TOLLEMACHE. (7 L. T. N. S. 526; S. C. 1 N. R. 177.) A mortgagee had power by his mortgage deed of appointing a receiver in certain events. He did so, and the receiver had recently died. On suit by a second mortgagee to redeem : Held, that the Court would now appoint a receiver; the first mortgagee to have a right to nominate, subject to any proper objection. THIS was a bill filed by a second mortgagee to redeem the first, and for foreclosure. The cause came on on motion for a decree. The first defendant Tollemache was the first mortgagee of the estate under a mortgage deed of July, 1846. By this deed he was empowered to appoint a receiver in certain events. He had appointed one Thos. Eade as the receiver, who had been in receipt of the rents and profits some time before his death, which had recently taken place. A question arose whether he had been the receiver of the mortgagor or of the mortgagee. If the latter, such mortgagee would be considered as mortgagee in possession. The principal question, however, was as to who should appoint the receiver for the future in the room of the deceased one, and considerable discussion took place as to the form of the decree to be made in that respect. Southgate, Q.C., for the plaintiff the second mortgagee. Rolt, Q.C., and Wickens for the first mortgagee. W. M. James, Q.C., and T. H. Hall for the other defendants. The VICE-CHANCELLOR said the principal question was as to the form of the decree appointing a receiver for the future, and he would look into the authorities on the subject. (1) 116 R. R 253 (4 K. & J. 41). The VICE-CHANCELLOR said that he had not been able to find a case precisely in point. The Court, however, was bound to protect the interests of all parties interested in the mortgaged premises, and he should make the usual decree for the appointment of a receiver in chambers. The receiver appointed by the first mortgagee under the power contained in his deed. must be considered as the mortgagor's receiver, and the mortgagee could not be considered as mortgagee in possession, but he would be accountable for the rents, &c. come to the hands of such receiver. In the reference to chambers as to the new receiver, the first mortgagee would have the right to nominate such receiver, subject to all proper objections to be made by the other parties interested. Decree accordingly. WALPOLE v. LASLETT (1). (7 L. T. N. S. 526–527; S. C. 1 N. R. 180.) A testator bequeathed the residue of his real and personal estate to trustees for his widow until death or second marriage, and upon her decease or second marriage to his unmarried daughters so long as they should remain unmarried, and "when and so soon as all his said daughters should be married," a gift over "to all and every his sons and daughters as should be living when the last of his said daughters should have intermarried, and the issue of such of them as should be then dead leaving any." Testator left three unmarried daughters, all of whom died unmarried; the survivor in 1861: Held, that the four children of the testator's deceased son, living at the death of the surviving daughter, were entitled to the residue. COLSTON CARR, by his will dated the 13th Dec., 1816, gave and bequeathed the residue of all his real and personal property, estate and effects, unto trustees in trust for his wife for her life, or so long as she should remain his widow, for the support and maintenance of herself and the testator's unmarried daughters, and upon her decease or second marriage, for such unmarried daughters so long as they should respectively continue unmarried, it being his will that "so long as any one of his said daughters should remain unmarried, such daughter should have the whole and exclusive enjoyment of his real and personal estate, until such daughter should marry. And when and so soon as all his said daughters should be married," a gift over to "all and every his sons and daughters as should be living when the last of his said daughters should have intermarried, and the issue of such of them as should be then dead, leaving any." At the time of testator's death there were three daughters (1) Underhill v. Roden (1876) 2 Ch. D. 494, 45 L. J. Ch. 266, 34 L. T. BORD x. TOLLE MACHE. Dec. 12. 1862. Dec. 15. WooD, V.-C. [526] unmarried. Neither of them ever married, and the survivor died in June, 1861. The issue of the testator living at the death of the surviving unmarried daughter were the four children of the late Bishop Carr. The bill was filed to have a construction put upon that part of the testator's will relating to the residue. The plaintiff was the legal personal representative of the three unmarried daughters. Sir H. Cairns, Q.C., and C. Hall for the trustees of the will. Rolt, Q.C., and W. Scott, for the plaintiff, contended that there was an intestacy as to the residue, and the gift over did not take effect. W. M. James, Q.C., and Kingdon, for the four children of the testator's son, contended that the class to take on the happening of the contingency, viz. the death of the surviving unmarried daughter, had been sufficiently indicated by the testator's will, and that the gift over was a valid bequest. The Court would supply any deficiency in the wording of a bequest to avoid an intestacy: Grey v. Pearson (1), Hope v. Potter (2), Browne v. Hammond (3). THE VICE-CHANCELLOR, after stating the terms of the residuary bequest and the facts of the case, said: The rule was clearly laid down in the case of Luxford v. Cheeke (4), quoted and commented upon in 1 Fearne Cont. Rem. 239. It was, that where there was a limitation to a person for life, or so long as that person should remain unmarried, the Court would construe the gift over so that it might take effect on the determination of the estate limited, although the expression of the testator might be that it should only take effect on marriage. In Sheffield v. Lord Orrery (5), a distinction had been made in a case where there was a limitation for a definite period, followed by a gift over, and where the estate was made to determine on the happening of some collateral event. He (the VICE-CHANCELLOR) could see no substantial distinction between a case where the gift was limited to a widow, and one limited to other persons. The difficulty in the present case was to ascertain the class to take under the gift over. This was made dependent on the (1) 108 R. R. 19 (6 H. L. C. 90). (4) 3 Lev. 125. (5) 3 Atk. 282. |