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Walter v. Selfe.

has been compared to that of a mine. The argument, if adopted, would prove too much. There are notorious instances of various kinds, in which the rights of a neighboring occupier, or a neighboring proprietor, prevent a man from using his land, as, but for those rights, he properly and lawfully might use it. A man may be disabled from building on his own land as he may wish, by reason of his neighbor's rights. So the proprietor on whose land a spring arises may be unable to stop, divert, or foil it, by reason of the rights of proprietors of neighboring land. It may be one of the most convenient things in the world for the owner of a mine to manufacture or smelt the mineral at its brink, but there may be the rights of others which make it unlawful for him to do so. The case of a chalkkiln, or a limekiln, is an acknowledged case in point of law, and I am not aware that it makes a difference whether the limestone or chalk is obtained from the same land or not. The paucity of authority on the subject of brick-burning is a circumstance not unfavorable to the defendant, but I am not aware of any authority for saying that it cannot be a private nuisance. I do not consider the case of The Duke of Grafton v. Hilliard, noticed in The Attorney General v. Cleaver by Lord Eldon, and more fully in Mr. Blunt's edition of Ambler, to have so decided. Lord Hardwicke's order of the 11th of June, 1736, which I have read, seems to have proceeded upon the special circumstances of that case, and does not, I think, govern the present, or affect it in the defendant's favor, seeing that he and the plaintiffs concur in desiring not to go before a jury, or to be referred to a court of law in any way. The question, it appears, was decided recently, in an arbitration by a distinguished member of this bar, whose accuracy and learning are universally acknowledged. He determined between two neighboring proprietors that brick-burning, the clay being the clay on the land of one, was a private nuisance to the other. His decision was probably correct in fact, and certainly correct in law. It was considered by Vice Chancellor Shadwell, before whom and Lord Lyndhurst it had been previously, to be so; and two judges now on the bench, whose opinions I estimate very highly, have informed me that they considered a private nuisance to be committed by a man who burns bricks on his own land, made of his own clay, if he does it so near to the house of his neighbor as to cause him substantial inconvenience and material discomfort. In the absence of special circumstances disabling the occupier from complaining, it appears to me in the present instance, that, the defendant as well as the plaintiffs declining to go before a jury, and asking the Court of Chancery to decide between them, without assistance in any shape from the court of law, I ought to grant an injunction. The order may be in these terms: The defendant and the plaintiffs by their counsel declining to try an action as to the alleged matters in the bill mentioned, and requesting the decision of this court upon the motion, without any assistance from a jury or a court of law, let the defendant, his servants, workmen, and agents, be restrained by injunction from burning, or causing to be burnt, bricks on the defendant's strip of ground in the bill mentioned, so as to occasion damage or annoyance to the plaintiffs,

Allen v. Loder. - Nicholay's Case.

or either of them, as owner or occupier of the messuage in the bill mentioned to be occupied by the plaintiff, Charles Pressly, or injury or damage to the messuage, coach-house, wood-house, shrubberies, and plantations in the bill mentioned to be occupied by the plaintiff Charles Pressly, until further order.

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THIS was a motion preparatory to entering an appearance for an absconding defendant, under the 31st order of May, 1845. The affidavits filed in support of the application showed that the defendant was keeping out of the way to avoid a warrant to apprehend him for deserting his wife and children, which had been placed in the hands of a police officer.

W. W. Cooper, in support of the application, cited Cope v. Russell, 2 Ph. 404.

LORD CRANWORTH, V. C., doubted whether, as the defendant was absconding on account of a criminal proceeding, it was within the terms of the 31st order; but ultimately he made the order required.


April 28, 1851.


THIS was a motion to have the name of J. Nicholay struck off the list of contributories to the Barnet and North Metropolitan Junction Railway Company. The evidence produced consisted of the following letters: :

"Barnet and North Metropolitan Railway, Company,}

"London, 3d October, 1845.

"Sir: We are directed by the committee of management to inform you that each member of the provisional committee will have a right to call for shares in this company, not exceeding 100 in number, by filling up the annexed form of application, and forwarding the same to the secretary on or before Wednesday, the 9th inst."

1 15 Jur. 420

2 15 Jur. 420.

Griffith & others v. Vanheythuysan.

This letter was signed by two persons as secretaries to the company, and directed to Mr. Nicholay. Mr. Nicholay sent the following


"Sir: In answer to your letter annexed hereto, I agree to take 100 shares of 201. each in this company, and to pay a deposit of 21. 2s. per share, and to sign the necessary deeds when required. 6th of October, 1845."

On the 23d of October the secretary wrote an answer, that 100 shares had been allotted to Mr. Nicholay. Nothing further was done by Mr. Nicholay; but the company having come under the Windingup Act, the master had placed the name of Mr. Nicholay on the list of contributories.

Roxburgh, now moved to have the name struck out of the list. There is no proof of any prospectus having been published with Mr. Nicholay's name, or any other publication or pledging of his credit to the world. He is only an allottee of shares, and there is nothing to show that he ever accepted the office of provisional committee-man, as in Upfill's Case, 14 Jur. 843; s. c.1 English Reports, 13.

LORD CRANWORTH, V. C., (without hearing the other side.) The letter is addressed to him as a provisional committee-man, and he does not object, and would have claimed the benefit of being such. In Upfill's Case nothing turned upon the publication of the prospectus. Motion refused.


May 6, 1851.

Pleading Parties - Misjoinder- Trustees - Cestui que Trust. One of several trustees, upon a representation that the trust fund was required for payment of debts of the testator under whose will the trust arose, obtained from his co-trustees a power of attorney, by means of which he sold out the fund, and appropriated it to his own use. He afterwards died insolvent. One of the cestuis que trust took out administration to the insolvent, and then, in conjunction with the other cestuis que trust, as co-plaintiffs, filed a bill to charge the estates of the deceased co-trustees of the insolvent with the loss of the fund, as having been occasioned by a breach of their trust. The bill was dismissed at the hearing, for misjoinder, and with costs as against those defendants who had taken. the objection by their answer.

IN 1829, a sum of 915l. consols was standing in the names of Smith, Plaister, and Vanheythuysan, as trustees, upon trusts, under which the plaintiff Griffith and his co-plaintiffs were the parties beneficially interested. In that year Vanheythuysan represented to his co-trustees that part of the fund would be required for the payment

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Griffith & others v. Vanheythuysan.

of debts of the testator by whose will the trusts of the fund had been created. Smith and Plaister thereupon executed a power of attorney to Vanheythuysan, by means of which the latter sold out the whole fund, and afterwards applied it to his own purposes. Vanheythuysan became insolvent, and died. Smith likewise died, having appointed an executor. The defendants R. E. Vanheythuysan and M. Marshall were then appointed trustees of the trust fund in lieu of Smith and Vanheythuysan, deceased. Plaister then died, having appointed executors. There being no personal representative of Vanheythuysan, the deceased trustee, the plaintiff Griffith took out letters of administration of his estates and effects. The bill was filed against the personal representatives of the two deceased trustees, Smith and Plaister, and the two new trustees, stating that Smith and Plaister, by giving a power of attorney to Vanheythuysan, and thereby enabling him to misapply the fund, had committed a breach of trust, and had thereby made themselves and their estates liable to replace the lost fund; that the other defendants, the present trustees, had been asked, but had refused, to enforce against the representatives of Smith and Plaister the replacement of the fund; that Vanheythuysan had died insolvent, and that no part of his assets had been received by Griffith; and praying that it might be declared that Smith and Plaister were liable in respect of the breach of trust alleged to have been committed by them, and that the defendants, their representatives, might be decreed to make good the trust fund, and that they might respectively admit assets for the purpose, or that the usual administration accounts of the estates of their respective testators might be taken. The representative of Smith, by his answer, objected to the suit on the ground of misjoinder, inasmuch as Griffith represented conflicting interests- one of cestui que trust, and the other of representative of the trustee primarily liable.

Bethell and Follett, for the plaintiffs.

The Solicitor General and Piggott, for the representatives of Plaister, objected that there was a misjoinder of the plaintiffs, and that no decree could be made. The case made by the bill was, that Vanheythuysan, the deceased trustee, received the money, and applied the same to his own use, thereby defrauding not only the cestuis que trust, but also his co-trustees; and that the latter, by giving the power of attorney, had rendered themselves liable. Griffith representing Vanheythuysan, the case, as between him and the parties sought to be made liable, must be dealt with as if Vanheythuysan were himself the plaintiff. Were that the case, would it be possible to contend that a suit could be maintained by the guilty party against his victims? Griffith would be clearly incapable of sustaining the suit as sole plaintiff, and his position in that respect could not be improved by the joinder of others as co-plaintiffs. Jacob v. Lucas, 1 Beav. 436. Lambert v. Hutchinson, Id. 277.

Giffard, (with whom was Rolt,) for the representative of Smith,

Griffith & others v. Vanheythuysan.

said, that in the event of accounts being taken as against the estate of Vanheythuysan, the interest of Griffith, as representing that estate, would be at variance with his interest and that of his co-plaintiffs as cestuis que trust. It would be impossible, in such a state of the record, that the accounts could be properly taken. Parties having adverse or inconsistent rights in the subject matter of the suit could not be joined as plaintiffs. Padwick v. Platt, 11 Beav. 503. Fulham v. M' Carthy, 1 H. L. C. 703. The suit stood in the same position, with reference to this objection, as if Griffith were sole plaintiff, and had the missing fund in his pocket, in which case it would be impossible for him to sustain a suit against the co-trustees of Vanheythuysan, who, as between him and them, were entirely innocent.

Bethell said that Griffith sued in his character of cestui que trust. In compliance with the rule of the court requiring all parties interested in the subject matter of the suit to be represented, he had clothed himself with the legal title of representative of Vanheythuysan. In that character he had not received any thing. The bill contained allegations to that effect, and to the effect that the estate of Vanheythuysan was insolvent. Could it be contended, that the adoption of the mere formal character of representative was sufficient to deprive him of his right to sue in respect of his beneficial interest? Suppose Griffith to have been the sole party beneficially interested, and suppose Vanheythuysan had named an executor, and that executor had afterwards died, having appointed Griffith his executor, and Griffith had accepted the office in ignorance that his testator had been the executor of Vanheythuysan, could it be contended that Griffith would thereby lose the right of maintaining his demand at all? If the objection would fail in such a case, where Griffith was suing alone, it could not be maintained where he was joined with other co-plaintiffs. The accruer of the right of representation could not deprive him of the right to sustain his suit. At law his beneficial interest would merge in his interest as representative, and he would be unable to sue; but in this court it was otherwise. The cases cited from Beavan had no application to the circumstances of the present case. In Jacob v. Lucas the infant plaintiffs were the sole parties beneficially interested in the subject matter of the suit, and they were joined as co-plaintiffs with another party who had no beneficial interest, and was the party primarily liable to make good the loss occasioned by the breach of trust. The fund in that case was appropriated by the tenant for life, but the breach of trust was the act of the trustees, of whom one sued as co-plaintiff. That was not the case here. Griffith was beneficially interested equally with his co-plaintiffs in the subject matter of the suit, and he was merely a formal party in his character of representative. The case of Lambert v. Hutchinson was decided on a different principle. There one of the co-plaintiffs was found to be bound by a settlement of accounts equivalent to a release, and it was held that the suit could only be maintained on the footing of all the co-plaintiffs being held bound by that settlement.

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