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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.
Demurrer. After the judgment had been pronounced, some dis
Amendment. cussion took place with regard to costs. The question was whether no costs were to be given on either side, or The demurrer
on the record whether the Plaintiffs were to be allowed the costs of the
having been aldemurrer on the record.
lowed, and a Demurrer ore
tenus, for want Mr. Bethell referred to the Attorney-General v. of parties, havBrown (a) and Mortimer v. Fraser (6), and asked for ing been overleave to amend the bill by either adding parties to it, or ordered the De
ruled, the Court striking out of it the passages which made the adding of fendants to pay
the costs of the parties necessary.
made no order Mr. Stuart referred to Newton v. Lord Egmont (c).
as to the costs
the The Vice-Chancellor.-I will consider this question, Plaintiff leave to and give my opinion on it to-morrow morning.
amend either by adding parties, or striking out
(a) i Swanst. 263, see 288. (6) 2 Myl. & Cr. 173.
(c) 4 Sim. 547.
which made the new parties necessary.
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.
CONNELL. 5th March.
* This Order is contained in Mr. Beames's Collection, page 174.
SMITH v. CORLES.*
New orders. This was a claim to foreclose a mortgage made by a
Practice. Defendant who had absconded.
Motion for an order under the
31st General Mr. Roberts, for the Plaintiff, moved for an order Order of May against the Defendant, under the 31st General Order 1845, against a
Defendant to a of May 1845 (a).
claim who had
absconded, reThe Vice-Chancellor refused the motion, saying that fused. 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.
1851 : IN THE MATTER OF CROSS'S ESTATE AND 10th and 20th
OF THE LANDS CLAUSES CONSOLIDATION January : and
ACT 1845, AND OF 22nd February.
THE EAST LINCOLNSHIRE RAILWAY ACT.
EX PARTE FLAMANK AND OTHERS.
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 way company, for
land taken, bequeathed his residuary personal estate to the Petiunder the
tioners share and share alike, and appointed them the Lands Clauses Act, from a per- executrixes of his will. son who was in a state of mental imbecility,
The East Lincolnshire Railway Act was passed in and who con- 1846, and the Companies Clauses, the Lands Clauses tinued in that
and the Railway Clauses Consolidation Acts, were instate until his death, but was corporated with it. In November 1848, at which time not the subject Cross had become paralytic and wholly incapable of of a commission of lunacy, order- transacting or even attending to business, the Comed, after his pany took possession of part of his land comprised in death, not to be the residuary devise in his will, for the purposes of reinvested in or considered as
their undertaking, and served him with notice, under land, but to be the 18th section of the Lands Clauses Act, that they paid to his exe
were willing to treat for the purchase thereof. No cutors.
attention was paid to that notice: in consequence of