be due to him, as mentioned above, offering to give the trustees any discharge or acquittance they might require for whatever balance they might pay to him, but without waiving his right to impeach the accounts. The trustees declined to pay the balance, unless the Petitioner signed an acquittance in respect of all demands against them as trus tees. Subsequently, the trustees paid into Court, under the Act 10 & 11 Vict. c. 96, a sum of 741l. 158. 5d., stating by their affidavit, that they were not aware of any other person than the Petitioner being entitled to the fund. The petition prayed for payment of the 741l. 15s. 5d. to the Petitioner. 1856. In re HEMING'S TRUST. Statement. Mr. Cairns, Q. C., and Mr. W. P. Murray, for the Petitioner, contended, that the trustees ought to be ordered to pay the costs of the application, or, at all events, that they ought not to be allowed any costs. The payment into Court was unnecessary and vexatious. The trustees had gained nothing by making it except a discharge pro tanto, and such a discharge had been previously offered by the Petitioner. Had they retained the money until the Petitioner agreed to settle the entire account, it would have been a different case, but the paying the money into Court was an abuse of the Act; and the more so, as the correspondence shewed an intention, on the part of the Petitioner, to take proceedings to impeach the accounts;-which brought the case within the principle of In re Waring (a). [The VICE-CHANCELLOR said, he had no jurisdiction under the Act to make the trustees pay costs; and the only (a) 16 Jur. 652. Argument. 1856. In re HEMING'S TRUST. Argument. question upon which he need hear their counsel was, whether they were to be allowed any costs.] Mr. Rolt, Q. C., and Mr. Karslake, for the trustees: The words of the Act shew that the Legislature intended to provide for all cases in which trustees are desirous of being relieved; and the Court has been in the habit of putting the most liberal construction upon the words of the Act, not requiring trustees to suggest any reason for taking advantage of its provisions: In re Croyden's Trust (a). Here, the trustees had a sufficient reason for the course they have taken. By adopting that course, they have prevented the Petitioner from imprudently instituting proceedings for taking an account; and now, on the hearing of the petition, they are willing to submit to a decree for an account, as if a suit had been instituted. Even if the course they have taken should appear to the Court unnecessary, still the circumstance, that they were led to adopt that course by the advice of counsel of the highest eminence, would be a sufficient reason for allowing them their costs upon this petition. Mr. Cairns, Q. C., declined to take a simple decree for an account, on the ground, that it was necessary to make special charges as to certain items. Judgment. VICE-CHANCELLOR SIR W. PAGE WOOD:--- Of course I cannot make a decree without consent, and, therefore, the order will be simply for payment of the fund in Court to the Petitioner. With regard to the question of costs, although I acquit (a) 19 L. J., Chanc., 173. the trustees of all improper motives, they certainly made a mistake in paying the money into Court, as, by so doing, they obtained no better discharge than had been previously offered them by the Petitioner. It is an undoubted rule, that trustees cannot be called upon to pay over a balance until their accounts are settled; but if they choose to make a payment like the present, the Act does not give them a release as to their accounts, but only to the extent of the fund actually paid in; so that these trustees have in fact gained nothing by the course they have taken, while they have put the Petitioner to expense in getting the money out of Court. In the case of Croyden's Trust, there was a dispute between two parties as to the title to the fund. Here, the title to the fund is undisputed. The trustees, by their own affidavit, filed on paying the fund into Court, expressly state that they are not aware of any other person than the Petitioner being entitled to it. The Court has no authority, under the Act, to make the trustees pay costs, but they cannot be allowed any costs, except the mere costs of paying the money into Court. Does the Petitioner object to their being allowed those costs? [Mr. W. P. Murray having replied in the negative, an order was made for payment of the fund to the Petitioner; and the trustees were not allowed any costs, except those of paying the money into Court.] 1856. In re HEMING'S TRUST. Judgment. 1856. Dec. 10th. RUMBOLD v. FORTEATH. Production of THIS was a bill of discovery. It stated, that George Lord Documents Affidavit Heir-Ejectment-Prac tice in Chambers. In a suit by the heir-at-law for discovery in aid of an action of ejectment brought by him against persons in possession, claiming as devisees of the ancestor:-Held, that the Defendants, whether bound to produce any documents or not, must Rancliffe, deceased, was, in his lifetime, and at the time of his death, seised of or otherwise well entitled to certain freehold hereditaments, situated in certain parishes and places therein specified, in the counties of Nottingham and Leicester; and that he died on the 1st of November, 1850, without having ever had any issue; and that the Plaintiff and two other persons were his co-heirs at law in coparceand it stated the pedigree of their heirship. nary; The bill then stated, that Lord Rancliffe, some short time before his death, had executed a certain paper writing, dated the 26th of June, 1850, alleged by the Defendants to be his last will and testament, whereby he bequeathed all his personal estate to the Defendant Harriott Forteath, make the usual absolutely: and, that it was alleged that the testator thereby gave and devised all his real estates, whatsoever and wheresoever, to the said Harriott Forteath, her heirs and assigns; and appointed her sole executrix. affidavit in answer to a sum mons for production by the Plaintiff. The practice on proceedings in Chambers is, that, if one side only desires to be That, on the 21st of June, 1851, probate of the said paper writing, as of the last will and testament of the said Baron Rancliffe, was granted by the Prerogative Court of heard by counsel, the Judge the Archbishop of Canterbury to the said Harriott Forhears the argu bers-if both desire to be so represented, ment in Cham- teath, as the executrix thereof; and that she possessed herself of the real and personal estate of the said Lord Rancliffe; and that she and her husband, the Defendant Alexander Forteath, or one of them in her right, had ever since been and still were in possession of such real estates; and that she had also possessed herself of all the title deeds, documents, evidences, and writings of and relating to the said the matter is adjourned to be heard in Court. real estates; and that the Plaintiff had lately commenced an action of ejectment against the Defendants Alexander Forteath and Harriott Forteuth for the recovery of the possession of the said real estates. The bill then stated, that, at the time of the death of the said Lord Rancliffe, there were outstanding terms for years in the said real estates, or in some part thereof; and also mortgages and other incumbrances thereon, and leases thereof, which were still subsisting; but that, by reason of the Defendant Harriott Forteath having possessed herself of the deeds, documents, evidences, and writings aforesaid, the Plaintiff was unable to set forth the particulars of such terms of years, mortgages, incumbrances, and leases, or any or either of them; and that the Defendants threatened and intended to set up such outstanding terms of years, mortgages, and incumbrances, and leases, or some or one of them, in bar to the said action of ejectment; and that the Plaintiff, under the circumstances aforesaid, was unable to proceed at law for the recovery of the possession of the said real estates. And the bill prayed discovery of all and singular the matters aforesaid, to enable the Plaintiff to proceed in and prosecute his said action of ejectment: and that the Defendants might produce at the trial of the said action all and singular the deeds, documents, evidences, and writings of or relating to the said real estates, or any or either of them, or such of them as might be necessary for the purposes of the trial of the said action: and for an injunction to restrain them from setting up outstanding terms, mortgages, incumbrances, or leases, or either of them. The joint answer of the Defendants set up the will. They admitted the possession of all such of the title deeds, documents, evidences, and writings of or relating to the said 1856. RUMBOLD ย. FORTEATH. Statement. |