Crossfield . Morrison, 565 v. London and North- Fame (The), 546 Fletcher v. Moore, 1063- a, et p., re The Bo-Foster, 399's Dearie & ors., Assignees, v. Müller. Claridge, Offertford Freeman (a pauper). Rosher,. Grimwood, 864 -Administratrix) of Jarman Ellis. Peachey, 564 Eyton v. Mostyn 975. 275,yewolloH .'s buEastern Counties, or Ips! Legge. Harlock,/229v9l10M wich and Southampton Rail- Lethbridge. Charter, 11PM way Company, 601 cyathof Lewes, re, 548 wo(D) пottoM Hollwey, ex p., re Vale of Linford v. Fitzroy, 303 (10) Neath and South Wales Littledale, C., (In the Goods Brewery Joint-stock Com of), 478969 220M bupany, 954 9% +3 39 doo Livesey v. Livesey, 37190M Holmes London and South. Lloyd, S., & ors., and J. Spit 8 western Railway Company, bitle, re, 5879 llor 815 boowitz „qq/Loader, Thomas, er Holt, ex p., re Liverpool and Lock v. Ashton, 1677 CManchester Saw Mills and Lomax v. Landells, 38 M London and Northwestern Reed Read v. Blayney, 1006 Barton, 232× 19/wo¶ 200 (10 £пotismal.9 enblwall Morley Attenborough, 282 . Penny v. Watts,459, 549q v. Bowen 10452912 v. Buchanan, 423 v. Clayton, 406 Cooper250219nbied v. Cooper, Frandis, 1998H v. Ealinga (Inhabs. of), shire (Justs. of)§447 VIS tibes of) Pyldarqshire (Justices of); -moƆ led 65 moionul bas Harbis, 1990. pasq ‚y9£h#53ar,.4 *enidooHoHarwich (Justices of), ΑΠ leton Stephenson 618 Quicky. London and North- 8001 v. Wynn, 107 v. Langlois, 579 Richards & orsaμApps,Att essenge;afè, ullSouth Wales Railway Compa- Sharpus, ex p., re Universal land Railway Company, 385 ficers of State for Scot- Sombre, Dyce, (a Lunatic), re, Stewart, ex p., re Stewart, 581 Stuart v. Stuart, 904 Townsend v. Deacon, 366 Trinity House at Hull v. Bea- Troutbeck, ex p., and ex p. Walton v. Holt, 355 v. Life, 479 Watts v. Christie, 244, 845 บ. Penny, 578, 758 635 Weedon v. Woodbridge, 627 (Dean and Chapter of), 694 1067 Willcox, re, ex p. Violett, 536 Willis, re, 1032 Woolf v. City Steam-boat Co., Wrigley v. Swainson, 800 DECIDED IN ALL The Courts of Equity and Common Law, AND IN THE Admiralty and Ecclesiastical Courts. COURT OF CHANCERY. been made, and certain work done. The bill is filed for THE SOUTH-EASTERN RAILWAY COMPANY . MARTIN. a discovery; the Company has all the discovery they Nov. 25 and Dec. 4. Equity-Jurisdiction—Accounts. Principles on which this Court interferes to restrain an Action in Matters of Account. The Observations of their Lordships in deciding the Case of The Taff Vale Railway Company. Nixon (1 H. L. Ca. 111) referred to and explained. This was an appeal from the decision of Knight Bruce, Vice-Chancellor, (reported 12 Jur. 1062). The following is the judgment of the Lord Chancellor, affirming that decision, and referred to in the note, 12 Jur. 1064. Stuart and Baily supported the appeal. Bethell, Greenwood, and Taylor, contra. Dec. 4-LORD CHANCELLOR.-I am of opinion that this is not a proper case for an injunction. It is stated by the pleadings that the Company think that justice cannot be done to them by the trial of the action at law in a manner so satisfactory as if there was an account taken before a Master of the Court of Chancery. That may be, but it does not of necessity follow that the trial of the action is to be restrained on that account. The observations of the noble Lords in The Taff Vale Railway Company v. Nixon (1 H. L. Ca. 111) have been referred to in the course of the argument as expressing an opinion that accounts ought to be taken by a court of equity, when required by the parties, in all cases in which a court of law might direct a reference at Nisi Prius. Now, I apprehend that the noble Lords in that case did not intend to intimate any such opinion, but only to exemplify, in those observations, the very great difficulty of dealing with such cases at law. Be that, however, as it may, I cannot, in the case before me, see any grounds for the exercise of the equitable jurisdiction of this Court. In matters of account the Court of Chancery has rules of its own; and, although the practical difficulties in proceedings at law do form a material consideration in the exercise of the discretion of the Court, its jurisdiction in matters of account is not exercised, as in many other cases, to prevent the inconveniences that may arise from the exercise of purely legal rights, or to enforce accounts in cases where courts of law cannot enforce them. The jurisdiction is concurrent with the courts of law, and is adopted in certain cases, because the Court of Chancery has better means of ascertaining the rights of the parties. It is, therefore, impossible to lay down a rule or to establish a definition as to the cases in which the Court ought to exercise its jurisdiction. The interests and the affairs of mankind will be found contrary to any such rule. In the present case, I repeat, that I am perfectly satisfied that the action ought not to be stayed. The case is not one of account between the parties. The only question appears to be, whether certain payments have VOL. XIII. a It require, and they pray further relief, apparently to avoid payment of the claim by delay. The bill of Martin & Fox was sent in in October, 1847; the action was commenced in the following November; and the proceedings at law went on until the vacation, when the Company filed their bill. The case of Thorpe v. Hughes (3 My. & C. 742) is a direct authority against any interference of the Court after such delay. would be a reproach to a court of equity, if, in a case of concurrent jurisdiction, where a party has proceeded at law up to within a short time of trial, he should be then restrained from going on at the application of the opposing party, who, without explanation or excuse, had permitted the proceedings at law to go on. The circumstances of this case preclude all interference on the part of a court of equity, and the motion for the injunction must be refused, with costs. MAJOR v. MAJOR.-Dec. 11. Practice Drawing up Order-Motion-Costs. The Minutes of an Order having been once settled by the Registrar, cannot be altered in the Absence of any of the Parties interested. Parties unnecessarily served with Notice of Motion, and only appearing to ask for Costs, will not be allowed the Costs of their Appearance. An order was made in this cause by the Lord Chancellor on the 31st May, 1848, and on the 17th June all parties attended before the Registrar to settle the minutes. On this occasion a proposition was made by A. B., the solicitor of the defendants, that certain words should be introduced into the order. This proposition was opposed by C. D., the plaintiff's solicitor; and, after discussion, was rejected by the Registrar. Subsequently, however, A. B., in the absence and without the knowledge of C. D., induced the Registrar to permit the insertion of the words proposed, and the order then went through its regular process and was passed. C. D. then discovered the alteration, and immediately moved, on behalf of the plaintiff, before the Lord Chancellor, to have the words inserted struck out; and the Lord Chancellor, on the 9th August, 1848, ordered accordingly. The notice of motion also asked that A. B. might pay the costs of the motion. This portion of the motion, upon the application of A. B., stood over, and now came on for argument. Rolt and Hislop Clarke, in support of the motion. The LORD CHANCELLOR, after going through the facts of the case, said-I am not disposed to carry the matter further than necessary to do justice between the parties, and therefore think it will be safer to put it on this broad ground, that when once an alteration has been settled by the Registrar, if one party thinks he can get it altered, he can only do so by bringing all parties be- VICE-CHANCELLOR OF ENGLAND'S COURT. fore the Registrar. It is not justifiable for any party to go behind the back of his opponent, and by a statement (true or false is immaterial) obtain an alteration in the order, of which the other party has no notice. Without, therefore, inquiring how the irregularity occurred, the order has been restored to the position in which it stood; and, being satisfied that this irregularity has been brought home to the solicitor who obtained the alteration, it is a matter quite of course that the party applying to have the order restored to its original position should be paid his costs, and that the other party should pay such costs to him; that is, they must be paid by the solicitor who has been in fault. HAWKINS v. HAMERTON.-Nov. 21. Will, Construction of-Survivorship-Period for Division-Per Stirpes. Malins and Welford, for the defendants, the clients of A. B., who had been served with notice of the motion, appeared and asked for their costs. LORD CHANCELLOR.-The costs of these parties must be paid by themselves, as there was no necessity for them to appear. They only appear to ask for costs*. Re LONDON AND SOUTH-WESTERN RAILWAY METROPOLITAN EXTENSION ACT, ex parte STEVENS.-Dec. 21. Lands Clauses Consolidation Act, (8 Vict. c. 18)-Costs -Lien. Money had been paid into Court by a Railway Company before entering upon Lands. They subsequently had the Lands valued, and paid the Price at which they were valued to the Landowner:-Held, on Petition by the Company for Payment out of Court of the Monies, that the Landowner had no Lien on such Monies for his Costs. This was an appeal from the decision of the ViceChancellor of England, (reported 12 Jur. 238). His Honor there held that money having been paid into court by a railway company before entering upon lands, and the lands having been subsequently valued, and the valued price paid to the landowner by the company, the landowner had a lien on the monies in court for his costs. The Company now brought the matter before the Lord Chancellor. Stuart and J. H. Law, for the Company. The Solicitor-General and Taylor, contra. [Sects. 34, 80, 85, and 87 of the Lands Clauses Consolidation Act were referred to, and also the case of Ex parte The Great Northern Railway Company, (12 Jur. 885).] The LORD CHANCELLOR considered that there was no lien for costs under the 80th section; that, on the present occasion, which was a petition by the Company for payment out of the monies in court, no order could be made for the payment of costs unless there was a lien; that the directions of the act were clear, the 85th section providing for the payment into court of the value of the land in specified cases, and the 87th section providing for the payment out of court of that money on the performance of certain conditions by the company; that, on the present petition, the conditions having been performed, the only question was, whether the Company were not entitled to have the money, and on this point the provisions of the act were clear; that, if a primâ facie case could be shewn for charging the Company with costs, the Court might perhaps direct inquiries before parting with the fund, but nothing of that kind appeared here; that, accordingly, the provision as to costs appeared to be introduced into the ViceChancellor's order without authority, and the order must be, therefore, made simply for payment of the money out of court. See Templeman v. Warrington, and Heneage v. Aikin, (1 J. & W. 377); Garey v. Whittingham, (1 T. & R. 405); Bamford v. Watts, (2 Beav. 201). A Testator, by his Will, gave Leasehold Property to his Son A.; but, in case he should die without Issue, the Leasehold Property was to form Part of his residuary Estate, and be divided amongst the Children of his three Daughters, as thereinafter mentioned. He then gave the Income of his residuary Estate to his Wife for Life, and after her Decease he directed his Trustees to pay the Income as follows:-" Amongst all my Children, the said A. and my said three Daughters, B., C., and D., or such of them as shall be living at the Time of the Death of my said Wife, in equal Parts, Shares, and Proportions, during their natural_ Lives." "And from and after the Decease of my said Son and Daughters, then I will and direct that the whole of such Residue and Remainder of my Estates, with all Accumulations thereof, shall be paid and divided amongst all and every the Children of my said Son and Daughters, in equal Shares; and in case any of my said Son and Daughters shall happen to die without leaving Issue," the Share of him, her, or them to go and be divided amongst the Survivor or Survivors, and their Issue, in the like equal Parts. B. died in the Lifetime of the Widow, leaving Children. A., C., and D. survived the Widow, and then D., and afterwards A., died; A. without leaving Children, and D. leaving Children:· Held, that the Children of B. were entitled to the same Share as B. would have been entitled to had she survived the Widow, namely, One-fourth; that, upon A.'s Death without Children, his Share became divisible into Thirds-One-third to the Children of B., another Onethird to the Children of D., and another One-third to C. for Life, Remainder to her Children; and that C. was only entitled for Life to her One-fourth of the Residue and her One-third of A.'s Share. Charles Hamerton, by his will, dated 30th July, 1799, gave to trustees therein named all his real and personal estates, directing them to sell and dispose of, Îet, set, manage, and improve, his freehold, copyhold, and personal estates, and to invest the proceeds arising therefrom in their names in Government securities, and to pay out of the rents, issues, profits, dividends, annual and other accumulations of his said real and personal estates, to his wife, Ann Hamerton, for her life, an annuity of 4507. He then gave as follows:-"I also give and bequeath unto my son, Charles Hamerton, all that leasehold estate which I now hold of and under the corporation of the city of London, situate and being at Whitefriars Dock, &c.; but in case my said son shall happen to die without issue, then I will and direct that the said leasehold premises shall revert to my said trustees or trustee for the time being, and be taken into and be considered as part of my residuary estate, and be divided amongst the children of my three daughters, as hereinafter mentioned." He then gave unto each of his three daughters, Isabella Killick, Matilda Hancock, and Mary Hamerton, for their sole and separate use, an annuity of 3007. for their lives. "And from and after the decease of my said daughter Isabella, I will and direct that the principal monies from which her said annuity of 3007. shall arise and accrue shall be paid and divided amongst such children as she may have by her present husband J. S. Killick only, in equal parts, shares, and proportions, as they attain their respective ages of twenty-one years. And from and after the decease of my said daughter Matilda, I will and direct that the principal monies from which the said annuity of 3007. shall arise and accrue shall in like manner be paid and divided amongst such children as she may have by her present husband, Samuel Hancock, only, in equal parts, shares, and proportions, as they attain the respective |