transfer the jurisdiction from law to equity upon the ground of a lost instrument. It is stated, in Com. Dig. "Abatement," E. 22,"If a Plaintiff sues, and to his name of baptism and surname adds the addition of any place or vill, and that be mistaken, be pleaded in abatement." "So it may be pleaded that one suing as gentleman is no gentleman." it may Mr. Shapter, for the bill. The description is not part of the pleading, and there is no averment that the Plaintiff is of Blank House. In Albretcht v. Sussman (2 V. & B. 323) the description of the Plaintiffs was that they were resident in France in the character of consuls of neutral States; and the question was, was that sufficient to sustain a plea that they were alien enemies? and the Lord Chancellor Eldon assented to the argument that there was no averment that the Plaintiffs were consuls. In Macnamara v. Sweetman (1 Hog. 29) a description of the Plaintiff as administratrix was held not to be an averment that she was actually administratrix; and a demurrer for want of such averment was allowed. It is not said whether this plea is negative or affirmative. If it is attempted to make it both it is bad in point of form. The issue tendered by a plea must be "a single, certain and material point, issuing out of the allegations or pleas of the Plaintiff and Defendant, consisting regularly upon an affirmative and negative." (Beames' Pleas in Equity, 21.) [THE VICECHANCELLOR. The averment in the plea is certainly not very distinct as to the time when the Plaintiff left her residence.] It is not sufficient to entitle the Defendant to security for costs. According to the plea the Plaintiff has no other address at this moment. It is true that, where a Plaintiff wilfully misrepresents his place of residence, he must give security for costs: Simpson v. Burton (1 Beav. 556). But this is not so when he gives the best address he can, although it may be he was not actually resident there when the bill was filed, if there be no intention of deceiving: Hurst v. Padwick (12 Jur. 21). The only necessary de-[xxv]-scription is such as will identify the Plaintiff. It is a matter of tradition that a princess of the Royal family once filed a bill, to which a similar objection was made; but it seems to have been thought that, in the case of so illustrious a person, she was so well known that it was needless to give her address. (1) A corporation, being Plaintiffs, never give any address; nor does the Attorney-General in an information. Then the proper remedy, if this be a defect, would be by a motion to take the bill off the file. THE VICE-CHANCELLOR. I have very little doubt that a plea might be put in in this case, but I am not satisfied with the form of this plea. A plea of this kind must be extremely precise in the issue which it tenders. This plea is not very precise as to the falseness of the Plaintiff's description; and the allegation that shortly after the death of her father she left her home is too vague; for anything that appears that might not be till after the filing of the bill. Mr. W. M. James, Q.C., in reply. The plea is that the description is false; the rest is merely a statement of the facts upon which that allegation is founded. The cases mentioned as analogous differ from this. The Attorney-General gives no address, because he never gives security for costs. THE VICE-CHANCELLOR Sir W. PAGE WOOD. According to the books of practice a misdescription of this kind may be shewn by plea, the office of a plea being to shew any informality in a substantial part of the bill; and it is a matter of substance, as agreed by Lord Redesdale, that there should be in the bill a statement of the place of abode of the Plaintiff, so that the Court may know where to resort to for the purpose of compelling obedience to any of its orders. There may be exceptions to this rule, like the case of the princess which has been mentioned, or the AttorneyGeneral; but it is nevertheless the rule, and the parties are entitled to have such a description; and, if it be omitted, it appears to me that the case would be analogous to [xxvi] the omission of the signature of counsel, which is no part of the pleadings, or of the affidavit denying collusion in an interpleader suit, either of which defects (1) See Report of the Chancery Commission, 1824, p. 205, where this fact is stated. in the evidence of the late Vice-Chancellor of England. may be taken advantage of by demurrer. It seems to follow that, if a false description be inserted, so as to obviate the possibility of a demurrer, the mode of raising the objection must be by plea. The case of Rowley v. Eccles (1 S. & S. 511) seems to shew that. There a demurrer was put in, which failed, because on the face of the bill there was a sufficient statement of the place where it was alleged that the Plaintiff was residing. Then a plea was put in that this statement was false; and it was not suggested in the argument, nor did it occur to the Court, that there was a short mode of disposing of the matter by saying that the objection could not be taken by plea. It was said only that there could not be two dilatories without leave of the Court, and, therefore, the plea was ordered to be taken off the file. But it seems to me that the averments in this plea are not sufficiently distinct. The plea states that the description is false. That would be satisfied in one sense by its being at this moment an untrue description. It would not be a moral falsehood if the assertion had been true at the time when the description was given; but it would be a false description within the literal meaning of the plea. Nor do I think that the subsequent part of the plea is a sufficient averment that the description of the Plaintiff was untrue at the time of filing the bill. It would not be a precise issue to try, and a more exact averment is necessary before the plea can be allowed. All decisions of this kind rest on very narrow grounds, because it is important that a plea should contain very precise averments. I recollect a case before the late ViceChancellor of England, where there was a plea that the Plaintiff had not proved the will, and the Vice-Chancellor held that the plea, having called the instrument "the will," had admitted it to be a will, and that the Plaintiff was an executor, and said that he might sue before probate. That was a strong case, but the Court on all occasions has held parties to the strictest possible form in a plea, in order that it may tender a precise issue for decision. The plea must, therefore, be disallowed, with costs. [xxvii] v. Enrolment of Decree. Time Extended. Orders of the 7th of August 1852. Under the 2d and 3d Orders of the 7th of August 1852, with respect to appeals, the Court to which any cause is attached, and not the Lord Chancellor and Lords Justices only, has jurisdiction to extend the time within which a decree may be enrolled beyond the period of six months mentioned in the order. The party applying for this indulgence is not bound first to pay the costs of an unsuccessful appeal to the Lord Chancellor, but must pay the costs of the application. Mr. Bagshawe, sen., moved, with notice, for leave to enrol a decree made by the Lords Justices, rather more than six months before the motion. By this decree the judgment of His Honour in the cause had been affirmed, and the parties now wished to carry the suit into the House of Lords. He referred to the orders of the 7th of August 1852 relating to appeals; and said that, to save time, in order to be able to appeal during the present session, the course of moving at once with notice had been adopted. Mr. Osborne, contrà, objected that the motion should be made to the Lord Chancellor under Order 6. Then the appeal had been dismissed with costs, and these costs were not paid, and, as this party was now asking an indulgence, the Court should put him upon the terms of first paying the costs of the appeal. THE VICE-CHANCELLOR Sir W. PAGE WOOD. I think, with regard to the question of jurisdiction, that it is quite clear, upon the construction of the orders, that the motion is to be made before that branch of the Court to which the cause is attached The 1st of the Orders of the 7th of August 1852 provides that there shall be no appeal after the lapse of five years. Nothing about leave is there mentioned. Then, by the 2d Order, the enrolment of a decree is to be made within six months after it is pronounced, and not at any other time, without special leave of the Court; and by the 5th Order no enrolment is to be made after five years from the date of the decree. Then it is provided, by the 6th Order, that the Lord Chancellor, either alone or with the Lords Justices, where it shall appear just and expedient, shall be at liberty to enlarge the periods thereinbefore appointed for a rehearing, on appeal, or for an enrolment that is to say, the authority that made these orders has left it to the Lord Chancellor and Lords Justices to vary those particular periods, when the circumstances seem to require it; but the Court, under the 2d Order, is to give leave for enrolment, that is, the Court to which the cause is attached; and I think that some very strong circumstances must be shewn to prevent the Court giving to the parties leave to appeal. [xxviii] The only question then is as to the terms on which that leave must be given. Of course the costs of this motion and order must be paid; but I do not think that I can stay the appeal until the costs of the unsuccessful appeal to the Lords Justices are paid. [xxviii] In the Matter of MANNING'S TRUSTS. In the Matter of THE TRUSTEE ACT, 1850. Feb. 11, 20, 1854. Vesting Order. Trustee Act, 1850. The Court has authority to make a vesting order under the Trustee Act, 1850, in cases where there is nothing to prevent a conveyance of the trust property to the trustees appointed by the Court. This was a petition for the appointment of trustees, in the place of deceased trustees, there being no power of appointing new trustees in the instrument creating the trust, and for a vesting order under the Trustee Act, 1850. (See sect. 34 and 15 & 16 Vict. c. 55, s. 1.) Mr. Pearson, for the petition, called the attention of the Court to the fact that there was nothing to prevent the trust property being conveyed to the persons appointed trustees by the Court, and said that the late Sir James Parker, V.-C., and Sir R. Kindersley, V.-C., had refused, in such cases, to make a vesting order; but it appeared that vesting orders in like cases had been made by other branches of the Court. THE VICE-CHANCELLOR said that he would consult with the other Judges as to the proper course. Feb. 20. THE VICE-CHANCELLOR Sir W. PAGE WOOD said that he had conferred with the other Judges, and found that vesting orders had only been refused where the facts of the particular case rendered it improper to make such an order. None of the learned Judges had any hesitation as to the power of the Court to make such an order, though there might exist a person capable of executing a conveyance. In this case the order might be made. [xxix] In the Matter of THE WINDING-UP ACTS, 1848 AND 1849. In the Matter of THE NATIONAL LAND COMPANY. In the Matter of GEORGE HERITAGE, Gentleman, one, &c. Feb. 14, 1854. Winding-up Act, 1848, s. 50. Name of Official Manager. In a petition under the Winding-up Acts by the official manager of the company his name, if required, must be stated in the petition. This was a petition by the official manager, under the Winding-up Acts, for the taxation of the bill of costs of Mr. Heritage, a solicitor, who had acted for the mortgagees of one of the estates belonging to the National Land Company. The petition. was headed "The Humble Petition of the Official Manager of the National Land Company." Mr. Roxburgh, for the petition. Mr. Chandless, Q.C., contrà, objected that the name of the official manager was not given. Mr. Roxburgh referred to s. 50 of the Winding-up Act, 1848, which enacts that all "proceedings on behalf of the company "shall be commenced or instituted and prosecuted by the official manager, by the style and designation of 'the official manager' of such company." THE VICE-CHANCELLOR Sir W. PAGE WOOD held that, the objection having been made, the petition must be amended by adding the name of the official manager. [xxx] In the Matter of THE ECLIPSE MUTUAL BENEFIT ASSOCIATION. In the Matter of THE FRIENDLY SOCIETIES ACTS, 10 GEO. 4, c. 56, 4 & 5 WILL. 4, C. 40 AND 9 & 10 VICT. C. 27. March 4, 1854. 10 Geo. 4, c. 56, s. 15. Petition. Society Dissolved. Under the Friendly Societies Acts, and particularly under 10 Geo. 4, c. 56, s. 15, after a society within their provisions has been dissolved, though its affairs are not wound up, the Court of Chancery has no jurisdiction upon petition to appoint a person to convey or assure property in the possession of a trustee, who refuses to concur with his co-trustees in realising it, for the purpose of having it distributed among the members. This was the petition of John Newton and John Hard, stating that they, together with one William Idle, were duly appointed trustees of the Eclipse Mutual Benefit Association, which was a friendly society duly enrolled; and that a sum of £25, with some interest thereon, was standing in their joint names in the Finsbury Savings Bank. That dissensions having arisen in the said society, it was agreed that it should be dissolved; and a plan of dissolution, stating the intended appropriation and division of the funds of the said society, as directed by the said Acts of Parliament, was adopted by the said members, to the effect that the committee of management should sell the effects of the said society, and appropriate the stock and funds for the benefit of the members-every member to receive his proportionate or equal division of the funds, according to the number of monthly contributions he had paid. The petition stated that the Petitioners had been and were desirous to wind up the affairs of the said society in pursuance of the foregoing plan of dissolution; but that the said William Idle, although often requested to join the Petitioners for the purpose of withdrawing the above-mentioned fund, had refused so to do; and prayed that the Court would be pleased to appoint such person, as to the Court should seem meet, on behalf and in the name of the said William Idle, to transfer the aforesaid fund to the Petitioners. The affidavit of the Petitioner, John Newton, verified the above facts, and stated that the society was dissolved in June 1852 with the votes of consent of five-sixths of the existing members, testified under their hands. Mr. Roxburgh, for the Respondents, took a preliminary objection to this petition that, as it appeared upon the face of the petition that the society was dissolved, the Court had no jurisdiction, under the Friendly Societies Acts, to grant the prayer of the petition, but that the application must be by a suit in Chancery in the usual way. Mr. Doyle, for the petition, referred to sect. 15 of 10 Geo. 4, [xxxi] c. 56, which provides "that, when and so often as any person seised or possessed of any lands, tenements or hereditaments, or other property, or any estate or interest therein, as a trustee of any such society shall refuse to convey or otherwise assure" the same "to the person duly nominated as trustee of the society in their stead," the Courts might appoint some person to convey to such trustee. The proper remedy was by petition; and the society, though in course of being dissolved, must be considered to exist, for the purpose of being wound up, until that was completely done. THE VICE-CHANCELLOR Sir W. PAGE WOOD seemed at first inclined to take this view; but, having considered the sections of the Act, said that he was afraid he could not help the Petitioners, and must, therefore, dismiss the petition, but without costs. [xxxi] HAYWARD v. HAYWARD. HAYWARD v. PRICE. March 11, 1854. [S. C. 23 L. J. Ch. 549; 2 Eq. R. 436; 2 W. R. 332. Croskey v. European Practice in Chambers. Examinant Refusing to Answer. 15 & 16 Vict. c. 80, s. 30. The Chief Clerk in Chambers never makes any order of his own authority, but all the orders made in Chambers are orders of the Judge, and are, in fact, made by him in the presence of the parties, unless they agree for their own convenience to take the order without actually going before the Judge in Chambers, or unless the order is such an order of course as would be made in Court without communication with the Judge, upon simply handing in a brief to the registrar; such last-mentioned order, when made in Chambers, being made upon the communication of the Chief Clerk to the registrar without the actual intervention of the Judge. The Judge in Chambers is always accessible to any of the parties who are engaged in proceedings there; and any party suggesting that he wishes to see the Judge personally can at once do so. If a person under examination in Chambers refuse to give a sufficient answer, the proper course is to apply to the Judge to examine him personally, which the Judge can do; and then, if he refuse to answer, he may be at once committed. The practice of waiting until the examinant has put in four insufficient answers, and then applying for an order that he may stand committed, if feasible at all, would involve very considerable delay, as the insufficiency of the several examinations must be certified by the Chief Clerk, and his certificates do not become final until twelve days after he has signed them under the Orders 47 to 52 of the 16th October 1850. An order for committal will not be made after a third insufficient examination. This was a motion that the order made in these causes on the 23d day of February last-whereby it was ordered that the Defendant, Robert Alexander Price, should attend the Chambers of the Judge to whose Court these causes were attached, at No. 11 New Square, Lincoln's Inn, in the county of Middlesex, on the 6th day of March 1854, at half-past twelve o'clock in the afternoon, to be examined on certain interrogatories therein mentioned, and in default thereof, or in case the said Defendant should not then perfectly answer the said interrogatories, it [xxxii] was ordered that the said Defendant, Robert Alexander Price, should stand committed to the Queen's prison until he should have perfectly answered the said interrogatories; and whereby it was ordered that it should be referred to the proper Taxing Master of this Court to tax the Plaintiff his costs in respect of the three insufficient answers and examinations put in by the said Defendant, Robert Alexander Price; and whereby it was ordered that the said Defendant, Robert Alexander Price, should pay to the Plaintiff, William Webb Hayward, such costs when taxed-might be discharged or varied. A decree had been made in these suits, dated the 23d of March 1853, directing an account of what was due to two of the Defendants for principal and interest, in respect of a mortgage to them of certain hereditaments; and in the prosecution of this decree in Chambers it became necessary, and leave was given, to examine the Defendant, Price, who was one of the mortgagees, upon interrogatories. This was done, but he put in three insufficient answers to the interrogatories. The first answer was declared to be insufficient by the Vice-Chancellor himself, after hearing counsel upon it. The Chief Clerk decided upon the insufficiency of the second and third answers; and, on the last occasion, the further hearing was adjourned until the 23d of February last; and upon that day, no further accounts being given, the order now complained of was V.-C. XIV.-11* |