day the ship sailed, and proceeded on her voyage until the 30th of September 1835, when it was alleged that she anchored off Salinas, in South America, which is at the mouth of the river Para, for the purpose of obtaining a pilot to take her up that river to the city of Para, where, as appeared by the evidence of the only survivor of the crew, she, on the 3rd of October 1835, was, in a hostile manner, attacked, conquered, and taken, skuttled and destroyed by pirates, and the goods comprised in the policies stolen, taken, and carried away by them, and became wholly lost to the defendant.

The defendant having brought actions on the policies against the underwriters, they, on the 24th of November 1836, filed their bill against the defendant, in which they charged the defendant with having entered into the above contract as the agent of the Brazilian government, by whom he had been paid, and that he had no interest in the action; that he had received, at the time, a very considerable sum of money, in respect of the goods, from that government, and that he had, from time to time, since the contract, received large sums of money in respect of the goods, which he sometimes pretended formed an item in account between himself and the Brazilian government, and that in such account that government had given credit to the defendant for the goods; and that there was a large sum of money due by him on the balance of such account. It further charged, that there were various witnesses at Para, Maranham, and elsewhere abroad, who could give evidence to the matters, &c., referred to, whose evidence it was very material for the plaintiffs to have upon the trial of the action; that some letters or correspondence had passed between the defendant and the officers of the Brazilian government, and between the defendant and the captain and mate of the ship, and between the defendant and various other persons residing at Para, Maranham, and elsewhere abroad, relating to the said matters or some of them; that the defendant, or his solicitors or agents, had in their possession, &c. such letters, &c., and various other deeds, books, &c.

It then prayed for a discovery; for a commission to examine witnesses at Para,

Maranham, or elsewhere abroad, to the end that the plaintiff might have the benefit of their testimony at the trial of the actions; and that, in the meantime, the defendant might be restrained by injunction from proceeding in the actions, and from commencing any other action or proceeding at law, &c.

To this bill the defendant demurred for want of equity, and, after argument, the demurrer was overruled by Lord Abinger, C.B., who granted the injunction. The defendant put in his answer on the 24th of July 1837, in which he denied the agency altogether, and gave a copy of the contract with the Brazilian government, the substance of which appears above. He admitted that, pursuant to the terms of the contract, the Brazilian government advanced to him the sum of 26,234 milreas, being one half the contract price for the goods which he had undertaken to supply to that government, and to whom he had given security for its due fulfilment on his part, and that he and his sureties were liable and bound to repay to the said government the said sum of 26,234 milreas, in the event of the goods not being delivered by him according to the terms of the contract; he, however, had not repaid the same or any part thereof, inasmuch as the Brazilian government having taken into its consideration the impossibility of his being able, under the circumstances of the case, to cause the goods shipped on board the Clio to be delivered at Para, had given him time for the fulfilment of his contract, and that he had accordingly ordered Messrs. Bates & Barrows to send to him at Para goods of the same description, value, and amount, as were insured by the policies, to enable him to execute his contract; but denied, except as stated, that the Brazilian government, or any other power, or person or persons, had paid him for the goods, or any part of the costs to which he had been put in relation thereto; but he admitted, that there was now nothing due to him in respect of the goods from the Brazilian government, or any other persons or person, except the underwriters of the two policies of assurance, inasmuch as the goods not having been delivered to the agents of the government according to the contract, it was not liable to him for them, the loss

being his own individual loss. He admitted having brought actions on the policies, and that he intended to proceed in them when the injunction should be dissolved: that the contract set out, and the letter to Bates & Co. were the only contracts entered into by him, with respect to the goods denied receiving any other money of the Brazilian government, &c., any money for the goods except the sum stated, which was considered by the government and himself as being now in part payment of goods ordered by him of Bates & Co., to replace those lost in the Clio, and to enable him to carry into execution the contract. He denied the charge, as to money due by him to the government, upon a balance of account, &c.

The case now came before the Court, on a motion on the part of the plaintiffs, that they might be at liberty, without prejudice to the injunction, to amend their bill, for the purpose of inquiring as to the Brazilian government having given the defendant time for the fulfilment of his contract, as mentioned in his answer: and as to what, if any, correspondence had passed between the defendant and Bates & Barrows, and other persons, as to the supply of fresh arms, &c. to the defendant or the said government: and as to whether some of the arms, articles, and goods, the subject of the insurance, had not got into the hands of the said government, their agents, or soldiers, and as to correspondence relating thereto; and that the plaintiffs might be at liberty to insert all necessary and proper statements and charges for the purpose of obtaining discovery as to the above

matters.

Mr. Simpkinson and Mr. G. Richards, in support of the motion.-The answer of the defendant discloses new circumstances. Information, for the first time, is given that the defendant had further time allowed him to fulfil his contract, and that he had ordered a second supply of arms, &c. It is essential, therefore, that the plaintiffs should know every circumstance connected with this new agreement and order. The first agreement, which is set out verbatim in the answer, was in writing; the probability is, that the second was also in writing. There may be recitals in it materially affecting the plaintiffs, shewing,

for instance, either great laches on the part of the Brazilian government, or that some of the arms, &c. have got into its possession; or it may shew, what appears probable from some expressions in the answer, that the ship had arrived at the limits within which the goods were to be delivered, in which case the defendant's liability to the Brazilian government would cease. The correspondence with Messrs. Bates & Co., with respect to the fresh supply of arms, may throw some light upon the subject. The circumstances under which the vessel was lost, are such as to warrant this application. It is clear, that without this further discovery the plaintiff cannot successfully go to trial. Janson v. Solarte (1) shews that the Court will, under particular circumstances, allow an amendment after answer to a bill of discovery.

Mr. Spence and Mr. Purvis, contrà.→ The plaintiffs have filed no affidavits as to matters in immediate connexion with the subject of the bill, but rely entirely upon their own suggestions derived from the answer, which distinguishes this motion from that made in Janson v. Solarte, which was supported by such affidavits. The plaintiffs ought, at all events, to shew that the defendant has disclosed matters which are material to this case, and which they could not have known before, and that there was no fault on their part, in not inquiring of them in their original bill. The goods mentioned in the contract, which is set forth in the answer, are those which were insured, and in respect of which the bill was filed; they being lost, the defendant came upon the underwriters for the insurance money, who filed this bill, to ascertain what interest he had in them. That interest, whatever it was, can have no reference to any subsequent contract made in relation to other goods. It is not probable, looking at the actual interest of the defendant in the goods lost, that the information sought, will be material to the plaintiffs. The defendant contracted to furnish goods to the Brazilian government, who agreed to pay him down one-half of the stipulated price; it did so pay him; the goods were lost, and the defendant became liable to refund the money he had received. The

(1) 2 Y. & C. 132; s. c. 6 Law J. Rep. (N.s.) Exch. 75.

government, however, instead of calling on him or his sureties to repay, gave him further time to fulfil the contract, allowing him to furnish other goods to supply the loss. Out of these circumstances, nothing material to the plaintiffs can arise; or if anything can, they should have filed affidavits of materiality in support of the motion.

Mr. Simpkinson replied.

LORD ABINGER, C.B.-The only doubt which I have entertained in this case is, whether or not there was a sufficient disclosure of the circumstances before any bill was filed, to lead the plaintiffs to suggest by their bill, whether any, and what, arrangement had been made at any time between the defendant and the Brazilian government in respect of this loss. I admit, that in general, if you direct your inquiries to a specific contract, made at one particular time, and the defendant discloses some other contract made at another time, which is connected with the matters inquir ed after, but does not amount to a full disclosure of those matters, this would be a ground for allowing you to amend your bill. But where the disclosures already made before the filing of the bill, are sufficient to put the plaintiffs on inquiry, as the disclosures here were sufficient to put the plaintiffs on their inquiry as to the probability of loss, and the nature of the contracts entered into, I am at a loss to see why the original bill should not have been directed to those subjects. I think there is much in what was said for the plaintiffs, as to the first contract being set out in the answer, and the other not; but still I think the plaintiffs come too late to avail themselves of any inquiries which might arise from this circumstance. The underwriters in this case were aware when they filed their bill, that the ship had been lost; of the particulars of that loss; that the cargo had been taken by pirates; that the party who had ordered the cargo had security from the Brazilian government to twice the amount of the cargo, and had been in some way paid; and yet that he was seeking to recover the insurance money in an action. Upon the supposition that he had been paid, they make certain inquiries on that head, to which, he replies

that he has been paid half the amount. They then find their case incomplete, without further information as to how, and under what conditions the payment was made. But why could they not have asked him this by their original bill? They might then have put to him the questions-Have you been paid? and if not paid the whole, how much have you been paid, and upon what terms have you been indemnified as to the remainder?

Although one is desirous of giving room for every inquiry in these cases, yet if a party neglects his opportunities of inquiry in the first instance, he ought not to be allowed to make suggestions afterwards, which he should have made at first. I should have thought, that in this bill, the plaintiffs would have pointed their inquiries to every circumstance, under which the arrangement could have been made.

The ground, therefore, on which I decide this motion, (and it is a little beside the arguments,) is this, that the plaintiffs had the opportunity of making the inquiries originally, which they now seek too late. Motion refused, with costs.

Mr. Simpkinson and Mr. G. Richards now moved on behalf of the plaintiffs, that one or more commissions might issue for the examination of witnesses at Para and Maranham, in the Brazils, returnable without delay, and that the defendant's clerk in court might, within four days after notice, join and strike commissioners' names with the plaintiffs' clerk in court; or in default thereof, that the plaintiffs might be at liberty to sue out a duplicate or triplicate of such commission or commissions, if necessary; and if the defendant joined in such

commission, seven days' notice of the execution of the commission to the defendant's commissioners, or any one of them, might be deemed good notice; and that such commission or commissions might contain the usual clauses for swearing an interpreter, and translating the interrogatories and depositions, if necessary; and that an injunction might issue to restrain the defendant from all further proceedings in the action, until the return of the commission or commissions, and publication should have passed in the cause; and that the defendant might, in four days after the date of the order to be made in this application, produce and leave in the hands of his clerk in court for the usual purposes, all the deeds, books, papers, memorandums, and writings admitted by his answer.

In support of the motion, the affidavit of Joseph Lowless, the solicitor to the London Assurance Company, co-plaintiff in this suit, was read, in which he stated, that, in order to sustain their defence to the action, it would be absolutely necessary to examine witnesses resident at Maranham and Para, for the purposes of obtaining their testimony on the trial, on behalf of the defendants-at-law, without which they could not safely proceed to

trial.

Mr. Spence and Mr. Purvis, contrà, contended, that this motion came too late, the application, if intended to be made, ought to have been earlier.

ALDERSON, B. said, he did not think that the delay had been of such a nature as to deprive the plaintiffs of the benefit of the inquiry they sought; and more especially, as, in his opinion, such an investigation might be necessary to attain the ends of justice. He would, however, in consequence of the delay, bind the plaintiffs under severe terms: he would direct them to pay the amount of the policy, with interest for one year last past, at the rate of 41. per cent., into court, to be invested in Exchequer bills. The plaintiffs to pay the costs of the motion. The commission to issue, and the injunction to be revived in the terms of the motion. The documents in possession of the defendant's solicitors in this country to be produced here. The books at Para to be inspected there on

This was a bill filed on behalf of an infant against the surviving trustee and executor of her father, the testator, imputing breaches of trust, irregular habits, and want of responsibility, to the trustee. By his will, the testator directed a part of his estates to be sold forthwith, and the produce to be immediately invested in other land to be settled to the same uses, or in government securities.

Immediately after the bill was filed, an injunction was obtained ex parte, to restrain the trustee from receiving any further part of the rents and profits. The affidavit in support of the injunction stated, that the trustee was a man of little or no property; that he had, since the death of the testator, become addicted to drinking; that he had misapplied the trust property; and that if he were permitted to receive any further sums there would, in the opinion of the deponent, be great danger of the money being lost.

The answer was afterwards filed, and the defendant thereby denied the irregularity of habits imputed to him, asserted his solvency, and denied the breaches of trust; but the accounts set out in the schedules to the answer shewed, that the defendant, immediately after the death of the testator, borrowed money at interest upon the ground of wanting it to pay debts: that, though he sold immediately the estates directed to be sold, he did not, till after the bill was filed, a period of several years, invest in the funds or in land, any part of the produce, but that he had, from time to time,

deposited monies with his bankers, at interest, and lent other monies also at interest, but without security.

The defendant did not, on his answer coming in, move to dissolve the injunction, but he was subsequently ordered to transfer and pay in the stock and monies admitted by his answer.

Subsequent rents having accrued due, a motion was now made, on the part of the trustee, to discharge the injunction, and on behalf of the infant to appoint a receiver.

Mr. Elderton, in support of the application for a receiver and also in opposition to the motion to dissolve the injunction, contended, that the injunction and the appointment of a receiver were both necessary for the protection of the infant's interests in the property.

Mr. Booth, contrà.-No sufficient reason has been given for disturbing the appointment of the testator, who had especial confidence in the defendant. The smallness of his property is no objection, as the testator, who knew that, thought proper to appoint him.

[LORD ABINGER, C.B.-That alone is not a sufficient ground.]

If the objection relied upon is, that the defendant is an improper person to receive the rents, the ex parte application for an injunction was irregular, as the proper application in the first instance was for a receiver.

[LORD ABINGER, C.B.-This was an injunction till answer; that answer has been put in nine months since, and yet the defendant has made no application till now to dissolve the injunction. Whatever the plaintiff might have done then, he comes now to do what is right. I think it was a proper case to apply for an injunction.]

This was an ex parte application on the other side. Now, the conditions on which such applications must be grounded, are, that the party praying ex parte for an injunction must shew an urgent and immediate danger, and that he has used due diligence. There is nothing here to shew that there was any immediate danger, nor was any suggested when the application was made. The injunction was obtained ex parte, and without the attention of the Court being called to all the facts. It was, therefore, improvidently granted, and the allega

tions upon which it was obtained are entirely denied by the answer, and the defendant is therefore now entitled to dissolve it. When the injunction is discharged, the whole ground for the appointment of a receiver is removed.

Mr. Elderton, in reply.-The testator had no especial confidence in the defendant. In the first instance, he appointed the widow as guardian to the child; but, in case of her second marriage, the testator appointed Edmund Rudd and the defendant to succeed her in that office, they having already been appointed by the will as trustees to the property. Rudd, the other trustee and guardian, is dead, and the mother has married again. The defendant cannot complain of the application for the injunction being ex parte, as the affidavit upon which the injunction was granted rendered it imperative upon the Court to grant it; and, though the answer denies some of the allegations in the affidavit, it discloses quite enough to shew that the defendant ought to have been restrained. The defendant borrowed money at interest, without any necessity; and, when he had realized the estate, instead of investing it as directed by the will, lent it on mere personal security.

LORD ABINGER, C.B.-It appears to me, that this injunction was properly granted. The affidavit stated, that the estate of the infant was in danger, that the defendant was a person of intemperate habits, was not a housekeeper, and had refused to account. Under these circumstances, I think I was right, on an ex parte application, in granting the injunction. The defendant has allowed that injunction to remain a considerable time after the answer was put in, without applying to dissolve it, and has received the rents and profits of the estate in defiance of the injunction. The matter disclosed by his answer, coupled with the other circumstances which appear, I think make it expedient that the injunction should continue until the Master has made some report on the bona fides of the case; and that being my opinion, a receiver must be appointed as a matter of course.

Receiver appointed in accordance

with the terms of the motion, and injunction continued.