1850. Chancery. THE QUEEN v. FOOT. Argument. Judgment. the plea of performance, and is contrary to the rule that all pleadings ought to be true; Stephens on Pleading, p. 243. In Balmano v. Thompson (a), Tindal, C. J., says: "It is perfectly clear that the Court have power and authority to interfere in a summary way, where they cannot but see that the plea is intended to perplex and confound instead of entering upon a real defence; and although they will not interfere where there is a reasonable doubt, where the sufficiency or insufficiency of a plea is a measuring cast, the Court is bound to do so where the plea is manifestly informal, and intended to harass and delay the plaintiff." And so in Horner v. Keppel (b), Lord Denman, C. J. says:-"Where a plea is clearly frivolous on the face of it, that is a good ground for setting it aside;" and as in Knowles v. Burward (c), where the matter set forth being clearly no defence, the plea was waste paper; so where the issue tendered is irrelevant, as in Wilson v. Lynch (d), or where, as in Mitford v. Finden (e), the plea was set aside on the ground of its being false, tricky and calculated to embarrass the plaintiffs; and Sir Edward Sugden, in the Queen v. Beatty (f), ordered a rejoinder to a replication to a plea in scire facias to be taken off the file as frivolous and filed for delay, observing in pronouncing his judgment that it was in fact a sham plea, a mere abuse of pleading and a quibble to gain time. The LORD CHANCELLOR. I never saw a more untenable pleading than the rejoinder in the present case. I refrain from expressing myself more strongly. The recognizance was to account whenever thereunto required and to pay the certified balances. An account was passed and a balance ascertained, and it is now admitted that this balance was not paid. By an order of the 8th of February 1850 the receiver was directed to pass a final account; this he has not done; and even assuming that he had not received any rents for which he was answerable upon passing his final account, he should nevertheless account as (a) 8 Scott, 310. (c) 10 Ad. & El. 19. (e) 8 M. & W. 511. (b) 10 Ad. & El. 18. (f) 8 Ir. Eq. Rep. 132. 1850. Chancery. THE QUEEN v. FOOT. directed by the order. This rejoinder is false in fact and bad in law, and was clearly only put in for the purpose of embarrassing the plaintiff, and to induce a demurrer and thereby to gain time; and I have no doubt at all as to the jurisdiction of the Court at any time in setting aside such a pleading; and accordingly let the rejoinder Judgment. be set aside and judgment be forthwith entered up for the plaintiff, with costs, including the costs of the motion. Motion granted with costs. L'ESTRANGE v. WHITE. L'ESTRANGE v. MOORE. Nov. 8. Under a decree pronounced in 1817 in a suit by the grantee lands, against judgment cre ditors of the grantor, THE bill in L'Estrange v. Moore, filed in 1815, stated that in the month of January 1810 Joseph Moore, in consideration of £2,100, granted by deed to Anthony L'Estrange for his life an annuity of o £300, and charged the same upon the lands of Tully and Early- charged upon Castron in the King's County. That bill was filed by Anthony L'Estrange, the annuitant, against Susanna and Elizabeth Moore, sisters of Joseph Moore the grantor, who were then in possession of the lands under writs of elegit issued upon judgments obtained by them upon bonds executed to them by their brother the grantor. It prayed, inter alia, that those bonds and judgments should be declared null and void as against the plaintiff, on the ground that appointed over were in possession by vir tue of writs of elegit, an ac count was taken of what was due to the grantee, and a receiver was the lands. The grantor of the annuity was not a party to that suit, and died in 1842 without having impeached the accuracy of the account taken in 1817. The grantee having also died, his executor in 1848 (up to which time the receiver had continued in possession) filed a bill against the co-heiresses of the grantor, praying a revivor of the former suit, an account of what was due for arrears of the annuity, and that the sum found due should be declared a charge upon the lands. The defendants insisted that the account taken in the former suit in the absence of the grantor was not binding upon them. Held, that in consequence of the acquiescence of the grantor during a period of twenty-five years, and the subsequent acquiescence of the defendants for six years, they were not entitled to have the account of what was due in 1817 taken novo, but that they should be at liberty to surcharge and falsify it. de 1850. Chancery. L'ESTRANGE บ. WHITE. Statement. there was not any valuable consideration given for them. It also prayed a receiver and an account of what was due to the plaintiff on foot of the annuity. Joseph Moore was not a party to that suit. A decree was pronounced in it in the year 1817, directing an account, and that a receiver should be appointed by the Master. Shortly afterwards a receiver was appointed and an account taken, by which a sum of £583 was reported due to the plaintiff as arrears of the annuity. The receiver continued in possession up to the present time. Joseph Moore having died in 1842, the bill in L'Estrange v. White was filed on the 25th of May 1848 by Francis L'Estrange (the executor of Thomas the annuitant, who was also dead), against Elizabeth White and Maria Leggatt, as co-heiresses of Joseph Moore, praying a revivor, and an account of what was due as arrears of the annuity to the plaintiff as executor; and that the sum found due should stand charged upon the lands, and that the receiver should be continued. The defendant Maria Leggatt, by her answer, insisted that the accounts taken in L'Estrange v. Moore having been so taken in the absence of Joseph Moore, were not binding upon her and her co-defendant Elizabeth White. Argument. Judgment. The Solicitor-General, Mr. F. Fitzgerald and Mr. Ince, for the plaintiffs, offered the accounts in the original cause of L'Estrange v. Moore in evidence. Mr. Battersby, with Mr. Osborne, for the defendant Maria Leggatt, objected, and cited Latouche v. Dunsany (a); Wrixon v. Vize (b); O'Brien v. Mahon (c). Mr. J. S. Armstrong and Mr. Sherlock, for other parties. The LORD CHancellor. The defendant Maria Leggatt does not suggest that there was any fraud in taking the former accounts; if the possession had been (a) 1 Sch. & Lef. 137. (b) 2 Dr. & War. 192; S. C. 4 Ir. Eq. Rep. 463. (c) 2 Dr. & War. 306. 1850. Chancery. L'ESTRANGE v. WHITE. in a private individual, perhaps you might be entitled to insist upon opening the accounts; but this was a possession under the Court. It is quite plain that Mr. Moore for more than twenty years knew what was going on, and several years have elapsed since his death without any step having been taken or objection made on the part Judgment. of the defendants. The acquiescence has been too great to admit of a decree permitting the defendants to have the accounts taken over again. The defendants shall have liberty to surcharge and falsify those accounts if they can. 1 Reg. Lib. Gen., fol. 10. KIRK v. EDMONSTONE. of of THE prayer of the petition in this matter was, that the sum Mr. Faloon, for the petitioner. The sole question is, whether or not the Court will consider this a case within the summary jurisdiction of the 15th section of the VOL 1. 3 Court of Chancery Regulation Act for an account on foot of a legacy charged upon lands, and for payment of the sum found due and for a sale of the lands if necessary, and that all necès sary, accounts should be taken and a receiver ap pointed, the Court refused to make a sum mary order under the 15th section of the Act, being of opinion that although the case fell within the spirit, it was not with in the letter of that section. 1850. Chancery. KIRK V. EDMONSTONE. Judgment. Nov. 16. Court of Chancery Regulation Act; for though, strictly speaking, it is not a petition for the administration of the real and personal estate of a testator, yet it certainly is within the spirit of that section. We therefore have not served any notice on the respondents. The LORD CHANCELLOR. It is within the spirit of the section, but I shall not travel out of the strict letter of the Act, and in all cases where I may have a doubt as to whether or not a case comes within the section, I shall require notice to be served on whatever parties the petitioner may be advised. I shall give leave to serve notice in this case, and the matter may be mentioned on the next petition day. Mr. Faloon mentioned to the Court that the tenant for life and tenant in tail were both out of the jurisdiction. The LORD CHANCELLOR. Then there must be a special application to substitute service. INGRAM v. RUSSELL. Dec. 14. Where the MR. M'FARLAND applied for a summary order of reference under conuzor of a judgment is the 15th and 27th sections of the Court of Chancery Regulation alive, the Court will not Act. The petitioner had obtained judgments against the respondents pronounce a in Trinity Term 1834 on their joint and several bond. The judgments were registered in December 1847 and revived in Michaelmas Chancery Re- 1849. The petitioner was also a salvage creditor, in respect of an gulation Act upon a peti- advance made by her to prevent the eviction for non-payment of tion praying summary order under the Court of foot of the an account on rent of a part of the lands affected by the judgments. One of the judgment, and respondents had gone to America in embarrassed circumstances, the a sale of his real estate. other had been served with notice of this application. The petition ' |