1851. MACINTYRE v. CONNELL. not know why the bill says: "if it shall appear;" because it alleges that they have a charge on the shares. And then it asks that proper directions may be given for the satisfaction thereof out of the said shares, and out of or by means of the other securities held by them, or for enabling the Plaintiffs to pay, to the Company, the amount of such charge, and to have assigned to them, thereupon, the said several securities held, by the said banking company, for the same; and that proper directions may be given for marshalling the said securities, so as to give the Plaintiffs the benefit of their charge upon the said shares. The bill, therefore, so far as it prays this relief, is a bill by a second incumbrancer to redeem the first (which he would have a right to do) and to have all the securities held by the first incumbrancer, assigned to him. But that cannot be done without having the persons who gave those securities, before the Court. I shall now advert to Mr. James's answer to the objection, which was that, as Connell was one of the debtors, he was not at liberty to make the objection.-I think, however, that what Mr. Stuart said is quite correct; namely, that Connell and every other person who is interested in the account, is at liberty to make the objection; because he, as well as they, has a right to have the account taken so that it may bind all parties, and conclude, for ever, all matters arising out of it. The only other point that remains to be considered, is Mr. Bethell's second answer to the objection; which was that the bill contained a charge for the purpose of discovering who the persons alleged to be necessary parties, are.—I think that, if the bill had alleged that the Plaintiffs did not know who those persons were, the demurrer would not have held; but it makes no such suggestion: and, therefore, the discovery is sought not to enable the Plaintiffs to supply the defect of parties, but merely as ancillary to the relief: and the rule is that if a Plaintiff cannot have the relief, he cannot have the discovery. It appears to me that none of the answers meet the objection, and, consequently, that, although the grounds of demurrer on the record are overruled, the ground alleged ore tenus, must be allowed. 1851. MACINTYRE V. CONNELL. After the judgment had been pronounced, some discussion took place with regard to costs. The question was whether no costs were to be given on either side, or whether the Plaintiffs were to be allowed the costs of the demurrer on the record. for Demurrer. Costs. Amendment. The demurrer on the record having been allowed, and a De murrer ore tenus, for want of parties, having been overordered the Deruled, the Court Mr. Bethell referred to the Attorney-General v. Brown (a) and Mortimer v. Fraser (b), and asked leave to amend the bill by either adding parties to it, or striking out of it the passages which made the adding of fendants to pay parties necessary. Mr. Stuart referred to Newton v. Lord Egmont (c). The Vice-Chancellor.-I will consider this question, and give my opinion on it to-morrow morning. (b) 2 Myl. & Cr. 173. (a) 1 Swanst. 263, see 288. the costs of the 1851. MACINTYRE V. CONNELL. 5th March. The VICE-CHANCELLOR : My first impression was that, in a case like the present, where the causes of the demurrer stated on the record, are disallowed, but the cause alleged ore tenus is allowed, the practice was not to give costs to either party; and I still think that that is the more reasonable course of proceeding. But there is an order of Lord Clarendon's, made just after the Restoration, in the following words:"If any case of demurrer shall arise and be insisted upon at the debate of the demurrer more than is particularly alleged, yet the Defendant shall pay the ordinary costs of overruling a demurrer, which is hereby ordered to be five marks, if those causes which are particularly alleged, be disallowed; though the bill, in respect of the particulars so newly alleged, shall be dismissed by the Court."* And it appears, from the Attorney-General v. Brown and Mortimer v. Fraser, that the practice has been according to that order; and, therefore, I shall order the Defendants to pay the costs of the demurrer on the record, as it is called; but make no order as to the costs of the demurrer ore tenus: and I shall give the Plaintiffs leave to amend their bill, not generally, but by either adding parties, or making such alterations in it as may cure the defect of parties. *This Order is contained in Mr. Beames's Collection, page 174. SMITH v. CORLES.* THIS was a claim to foreclose a mortgage made by a Mr. Roberts, for the Plaintiff, moved for an order against the Defendant, under the 31st General Order of May 1845 (a). The Vice-Chancellor refused the motion, saying that the 13th General Order of April 1850, did not authorize the Court to make a decree against a Defendant for whom an appearance had been entered, and, therefore, an appearance entered for the Defendant under the 31st Order of May 1845, would be inoperative. Claim. New orders. Practice. Motion for an order under the 31st General Order of May 1845, against a Defendant to a claim who had absconded, re fused. *Ex relatione Mr. Roberts. (a) See Beav. Ord. 295. VOL. I. N. S. te Re Bards tout nut 60%. 1851 : 10th and 20th January: and 22nd February. Lands Clauses Reinvestment money. Conversion. Zura & Phodes 104 R.456 IN THE MATTER OF CROSS'S ESTATE AND THE EAST LINCOLNSHIRE RAILWAY ACT. EX PARTE FLAMANK AND OTHERS. of compensation T. L. CROSS, late of Louth in the county of Lincoln, miller, by his will dated in 1839, devised his residuary real estate to trustees, in trust, in equal third parts, for Money paid into his three nieces, the Petitioners, for their separate use Court, by a rail- for life, with remainder for their children in fee; and he bequeathed his residuary personal estate to the Petitioners share and share alike, and appointed them the way company, for land taken, under the Lands Clauses Act, from a per- executrixes of his will. of a commission of lunacy, order ed, after his The East Lincolnshire Railway Act was passed in 1846, and the Companies Clauses, the Lands Clauses and the Railway Clauses Consolidation Acts, were incorporated with it. In November 1848, at which time Cross had become paralytic and wholly incapable of transacting or even attending to business, the Company took possession of part of his land comprised in death, not to be the residuary devise in his will, for the purposes of their undertaking, and served him with notice, under the 18th section of the Lands Clauses Act, that they were willing to treat for the purchase thereof. attention was paid to that notice: in consequence of which the Company procured a jury to be summoned to determine the amount of the purchase-money: but reinvested in or considered as land, but to be paid to his exe cutors. No |