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absent defendants in the original suit, but declined to enter an appearance for them in the supplemental suit.
Mr. Moxon, for the plaintiff, moved for leave to serve Messrs. Denton, Kinderley & Domville with the subpoena for the absent defendants to appear to and answer the bill of revivor and supplement. He cited Norton v. Hepworth, 1 Hall & Twells,
158; 1 Mac. & Gor. 54 ; s. c. ante,
172. Wallis v. Darby (2), 6 Hare, 618 ; s. c.
conclusion to which I have come. One of these was made by the defendant, founded upon the case of Fildes v. Hooker. I do not in the least degree doubt the power of the Court to enter upon the ques. tion of title at the hearing of the cause, or to make such a question a ground for dismissing the bill. But in order that it may be proper so to deal with a case, the defect or supposed defect in the title should be prominently put forward in the pleadings. I cannot say that I think such is the case here. The question on these pleadings is agreement vel non, and the question of title ought to be the subject of reference to the Master, which would afford the parties an opportunity of taking all objections to the title. Upon the only point remaining I shall merely observe, that the defendant appears to me to deny as positively as Mr. Lofts asserts, that the former waived inquiring into the landlord's title.
Many of the observations I have made may appear to be extra-judicial; but having come to the conclusion that it is one in which I ought not to help either party by any relaxation of the strict rules of practice of the Court, and finding that the plaintiff has omitted to prove a point, the proof of which was in her power, if the point could be proved—I have thought it right to state my opinion on each part of the case. The bill must, therefore, be dismissed, with costs.
WIGRAM, V.C. ordered that such substituted service should be deemed good service upon the absent defendants.
K. BRUCE, V.C.)
STUTELEY V. HARRISON.
On a motion for the appointment of a guardian of infant defendants, the appearance of one of them, who was less than a month old, in court was dispensed with, on the production of an affidavit of the birth, and that it would be prejudicial to remove it.
This was a motion for the appointment of a guardian of several infant defendants, who all appeared in court, except one, who was born on the 31st of March. This infant had been baptized.
Mr. Giffard, for the motion, asked that the appearance in court of the absent infant might be dispensed with.
HART v. TULK (1). Subpoena–Substituted Service-Defendants out of Jurisdiction.
Substituted service of subpoena for defendants, out of the jurisdiction of the Court, to appear to and answer a bill of revivor and supplement, ordered to be made on their solicitors in the original suit.
KNIGHT BRUCE, V.C. said that, on production of an affidavit of the birth of the infant, and that it would be prejudicial to remove it, he would appoint a guardian without the production of the infant in court.
A bill of revivor and supplement had been filed in this cause against certain defendants, three of whom were defendants in the original suit, and were now resident in Italy. Messrs. Denton. Kinderley & Domville acted as the solicitors of the
(1) Reported on another point, ante, p. 162.
- (2) In this case it was not known that the defendant for whom the substituted service was there sought to be effected was actually out of the jurisdiction of the Court; but the order was made on an affidavit that he could not be found after diligent inquiries at the place from whence he had then recently dated a letter.
WINN V. FENWICK.
M.R. 2 March 8. ]
Settlement - Power of Appointment Non-execution — Implied Gift — Parties entitled.
Upon a marriage a sum of 5,0001. consols was vested in trustees, to pay the dividends to the husband for life, and, after his decease, upon trust to transfer the principal to the wife, her executors and administrators, or as she or they should appoint ; but in case the wife should depart this life in the lifetime of the husband, leaving issue one or more child or children then living, then, after the decease of the husband, upon trust for all and every the child and child ren of the marriage as the wife should by deed or will appoint; and if there should be no issue of the said marriage living at her death, then upon trust for such person as the wife should by deed or will appoint, with remainder, in default of appointment, to the husband absolutely. There were seven children of the marriage, two of whom died under the age of twenty-one years, in the lifetime of the wife, who never executed the power of appointment; another of the children attained twenty-one, and died in the lifetime of the husband; and upon a bill filed to determine the interest of the children under the settlement, it was held, in reference to the power, that the five children living at the death of the wife were entitled to the 5,0001. consols, by implication, and that there was no implied gift for the benefit of all the children of the marriage.
that they should stand possessed thereof, and of the interest and proceeds thereof, after the solemnization of the marriage, upon trust to pay unto or otherwise to permit and suffer the said Barnabas Fenwick and his assigns to receive and take the clear yearly interest and dividends, for his and their own use and benefit, for and during the term of his natural life ; and immediately after the decease of the said Barnabas Fenwick, in case the said Elizabeth Cuthbertson should survive him, upon trust to assign and transfer the 5,000l. consols unto the said Elizabeth Cuthbertson, her executors, and administrators, for her and their own use and benefit, or as she or they should director appoint. But in case the said Elizabeth Cuthbertson should depart this life in the lifetime of the said Barnabas Fenwick, leaving issue of her body one or more child or children then living, then, from and immediately after the decease of the said Barnabas Fenwick, upon trust, for all and every the child or children of the said Barnabas Fenwick, on the body of the said Elizabeth Cuthbertson to be begotten, in such parts, shares and proportions as the said Elizabeth Cuthbertson by deed or will should direct or appoint; and if it should happen that there should be no issue of such intended marriage living at her decease, then, upon trust, for such persons as the said Elizabeth Cuthbertson should by any such deed or instrument or last will direct or appoint, and for want of such direction, or where the same should not be a complete and entire appointment of the whole, then, upon trust, to assign the said 5,000l. consols, or such part concerning which no such direction should be given, unto the said Barnabas Fenwick, his executors, administrators or assigns.
There was issue of the marriage seven children, two of whom died, without having attained twenty-one, in the lifetime of Mrs. Fenwick.
On the 17th of July 1837 Elizabeth Fenwick died, leaving her husband Barnabas Fenwick, and Elizabeth Fenwick (who afterwards married William John Winn), Barnabas Fenwick, Henry Fenwick, and Edward Emmerson Fenwick, and Catherine Fenwick, the only surviving
By a settlement, dated the 4th of October 1806, Barnabas Fenwick, in contemplation of a marriage with Elizabeth Cuthbertson, after reciting that for making some provision for the said Elizabeth Cuthbertson in case she should happen to survive him, and for the issue of the said marriage in case she should die in his life time, it had been agreed that the sum of 5,0001. consols, part of the estate of Elizabeth Cuthbertson, should be settled upon the trusts thereafter mentioned; it was declared that the 5,0001. consols should be transferred into the names of William Cuthbertson and William Thomas Greenwell, theirexecutors and administrators, and
New Series, XVIII.-CHANC.
children of the marriage. Catherine Fenwick attained twenty-one, and died in the lifetime of her father.
On the 20th of January 1839 Barnabas Fenwick, the elder, died, leaving only four children of the marriage him surviving.
William Cuthbertson died on the 13th of December 1814, leaving William Thomas Greenwell, his co-trustee, surviving.
Elizabeth Fenwick never executed the power reserved to her by the settlement of the 4th of October 1806 in favour of the children of the marriage. Upon the decease of Barnabas Fenwick letters of administration to Catherine Fenwick and to the two children who died in the lifetime of their mother, were granted to Edward Emmerson Fenwick, and this suit was instituted by W. J. Winn and his wife to determine whether the 5,0001. ought, in the events which had happened, to be divided among all the children of the marriage, or among the five who were living at the death of their mother, or only among those who were living at the death of their father.
of Mrs. Fenwick. Witts v. Boddington (1) had many of the important features of this case; but there the desire of the donee of the power was to leave the property not to the children of the party named, but to other parties mentioned, and throughout it was assumed that those children who were living at the testator's death were alone entitled.
Mr. Purvis, for the defendants, Barnabas Fenwick and Henry Fenwick.—The rule of law in cases similar to the present is, that when a gift was to be implied, those parties only could take who would be entitled upon an execution of the powerWalsh v. Wallinger (2), Woodcock v. Renneck (3), 2 Sugden on Powers, 183, 6th edit. The power in this case could have been exercised by deed or will; it might, therefore, have been exercised by Mrs. Fenwick, although there was apparently a contingency beyond the life interest affecting the fund, still that contingency could have been reduced to a positive certainty; and if Mrs. Fenwick had exercised the power by deed, and had survived the parties in whose favour it had been exercised, their personal representatives would have taken, and the claims of the other children would have been defeated.
Mr. Elderton, for Edward Emmerson Fenwick as administrator of the deceased children. The settlement only gave Mrs. Fenwick a life interest in the fund, which reverted to her in case she died without children ; but, as she had children at her death, the fund became an interest vested for the benefit of all the children of the marriage. If she had made an appointment in her lifetime, and all the appointees had died, their personal representatives could not have taken. It was only in the event of her departing this life, leaving issue of her body then living, that she had power to appoint, unless it was under the subsequent words, which gave her power, in case she had no children, to appoint to any person she pleased ; but as the case
Mr. Spence and Mr. Younge, for the plaintiffs. — The power of appointment never having been executed, the gift over only came into operation in the event of there being no issue of the marriage. The children living at the death of Mrs. Fenwick could alone intercept the gift over; but under the words of the settlement it is clear that the power only came into existence in the event of her leaving issue at her death. Supposing Mrs. Fenwick to have had ten children, all of whom had married and had children and had died during her life, it is clear that not one of the children would have been entitled, it being the plain object of the settlement to give to such of the children only as were living at her death, at which time the par ties entitled were ascertained, and the fund became divisible in fifths; but it is a question whether in default of appointment such a power as that contained in this settlement implied a trust over for the benefit of children: it has generally been so when there was no gift over; but any gift by implication could only be for the benefit of the children living at the death
stood, the power was to be exercised for all the children, and it must be assumed that all were to be provided for.
Mr. Spence, in reply.
the meaning which the words in it express.
Extract from the decree :
“Declare that according to the construction of the indenture of settlement, dated the 4th day of October 1806, the children only of the marriage of Barnabas Fenwick and Elizabeth his wife, in the pleadings named, who were living at the death of the said Elizabeth Fenwick, were entitled to the fund included in the said settlement."
The MASTER OF THE ROLLS.—Many events might have happened in this case to disappoint the object the parties had in view. It was, no doubt, intended to provide for the case of a child dying in the lifetime of Mrs. Fenwick leaving a family, but as the case stands a life interest was given to Mr. Fenwick, and in case Mrs. Fenwick should depart this life in the lifetime of her husband, leaving issue of her body then living, in that event, and in that only, she was to appoint. The words giving the power were: “In trust for all and every the child and children,” without limiting the description to such children as were living at her death. It is therefore impossible to say what might have been the case if she had executed this power in her lifetime, and had left one child living at her death; the interests might have been very different from what they are : it was, however, the power of appointing to all, in the event of her leaving any children living at the time of her death. In cases of implied gifts under powers of appointment of this kind, none can take contrary to the words of the power, from which the gift was to be implied, except those who might have taken under an execution of the power. The argument now brought forward seems to be the converse of that --it is, that none could have taken under the execution of the power who could not have taken by implied gift; but no authority has been cited in support of that, neither do I think that any could be cited. But the further words of the settlement “ that if it should happen that there should be no issue living at her decease, then that it should go over," might be considered in connexion with this power of appointment. I therefore think that the meaning of the words expressed in the settlement was, that those only of the children living at the death of Mrs. Fenwick should take. The treatment of the expression makes a great difference, but courts of equity are obliged to attribute to the maker of a deed
M.R. THE ATTORNEY GENERAL V. THE May 5. ) CORPORATION OF LONDON.
Costs-Attorney General suing on behalf of the Crown— Courts of Equity, their Jurisdiction.
In an information filed by the Attorney General on behalf of the Crown against the city of London, the Master allowed exceptions to the further answer of the corporation for insufficiency, and certified that costs ought to be paid by the corporation. The corporation took exceptions to the Master's report, but they did not except to that part of the certificate stating that they ought to pay costs. Leave was afterwards obtained from the Court to discuss the liability of the defendants to pay costs :-Held, that there is no such general rule in equity as that the Allorney General cannot receive costs because he does not pay them, and that the corporation were not exempt from the payment of costs.
Upon overruling the exceptions to the Master's report of the insufficieny of the further answer of the corporation (1), the Attorney General claimed his costs, upon which leave was obtained from the Court to submit the question to its consideration.
Mr. Bethell and Mr. Randell, on behalf of the corporation, insisted that the rule which had hitherto prevailed was, that as the Crown could not be called upon to pay costs, it had no right to require them to be paid ; and on the appeal from this Court to
(1) Ante, p. 314.
the House of Lords upon the demurrer the Lord Chancellor said, “The Attorney General as such did not pay costs. He did not mean to say that a case might not occur in which the Attorney General would be liable to pay costs, but then where private parties had no chance of getting costs, the Court was cautious how it made them pay costs," and the judgment of this Court was affirmed without costs (2). If, therefore, in any case the Crown could be entitled to costs, it would be only in cases of vexatious conduct or gross misconduct on the part of those opposed to the Crown, or where there was any irregularity in the proceedings, or any attempt to take undue advantage of the Crown The King v. Hassell (3); but it was only in such cases that the Attorney General could have any costs. In The King v. Miles (4), upon a scire facias at the suit of the Crown to repeal a patent granted to the defendant, a verdict was given for the Crown, and a rule was obtained referring it to the coroner and attorney of the King to tax the costs to be paid by the defendant to the prosecutor, who was the Attorney General, and upon a motion to set it aside the 8 & 9 Will. 3. c. 11. was referred to, but the Court considered that the case fell within the general rule, that no costs were either paid or received where the Crown was the prosecutor, unless in some particular cases, such as informations in the nature of quo warranto, by the special provision of the legislature. By the 33 Hen. 8. c. 39. s. 54. the legislature provided that the Crown should recover its debts and costs where an action was brought upon specialties. In Hullett v. the King of Spain (5), upon a bill filed in the name of the King of Spain, as well against certain persons in whose hands money had been deposited, as against the person who deposited those monies, which were to be distributed, under a treaty between France and Spain, among the subjects of the King of Spain, and that bill prayed discovery and payment of the monies into court, the defendant
demurred for want of parties, and because a foreign sovereign could not sue in a court of equity in England; but Lord Lyndhurst overruled the demurrer, and, upon appeal to the House of Lords, the order was affirmed, but without costs, on account, as stated by the reporter, of the dignity of the plaintiff. For a long series of years it had been the practice and received notion of the profession, that the Crown when suing, or the Attorney General when suing on behalf of the Crown, in respect of its rights of property, and rights vested in it by prerogative were rights of property,—that the Crown neither received nor paid costs—Hullock on Costs, p. 18, Fowler's Exchequer Practice, vol. 2, p. 371, Chitty's Prerogative of the Crown, p. 310, 3 Black. Com. 400. The Attorney General had filed this information on behalf of the Crown, alleging that the Crown was entitled by its prerogative to the bed and soil of the river Thames as part of the possessions of the Crown. The corporation put in their answer, which the Master thought insufficient, and upon exceptions to the Master's report they were overruled. The points to which the exceptions related were, whether the corporation were bound to disclose to the Crown their evidences of title, whether they had in their possession certain charters and deeds. The information called upon the corporation to set out how and in what way they established their title to the bed and soil of the river Thames. In an ordinary bill between subject and subject the requisitions made could not be maintained; and it was only on the ground of the particular relationship between the Crown and the corporation of London that it was thought that the Crown was entitled to the discovery, and to ask for those things to which the exceptions related. These points were of the greatest importance to the corporation. They claimed to be entitled by prescription, and if they were bound to disclose or set out the documents in their possession, they would labour under disadvantages whenever they went to trial with the Crown. They had been advised, therefore, to resist the discovery. Relying, then, upon the general rule, and that the corporation were
(2) I H. L. Cas. 471. (3) 13 Price, 279. (4) 7 Term Rep. 367. (5) 2 Bligh, N.S. 31.