COURT OF CHANCERY.

COPE v. RUSSELL.-May 22. Practice-Subpoena-Substitution of Service. Substituted Service refused in a Case where it was not shewn that the Party on whom such substituted Service was proposed to be made had any Authority to act as the Agent of the Defendant, who was out of the Jurisdiction.

On 23rd March, 1847, an application was made by the plaintiff in this cause to Knight Bruce, V. C., for leave to serve the subpoena on C., the defendant's attorney, the plaintiff not being able to discover the residence of the defendant himself. His Honor, however, not thinking the case within the authorities cited, refused the application. The motion was now renewed before the Lord Chancellor. The circumstances of the case were as follow:-In November, 1845, the plaintiff brought an action in the Exchequer against the defendant for a debt, and obtained judgment. On 13th December, 1845, the defendant filed a bill against the plaintiff to restrain execution. This bill was ultimately dismissed. C. acted as the attorney of the defendant in the action at law, and as his solicitor in the suit. It was stated in an affidavit by the plaintiff's solicitor, filed in support of the present application, that the deponent believed that, soon after the judgment had been obtained in the action, the defendant went to reside abroad, but that C. continued to act as his attorney; and, as evidence thereof, that several communications had been made to the defendant through C. during the latter part of the year 1846, in reference to other legal proceedings. The suit in which the present application was made was instituted for the purpose of rendering the judgment available pursuant to 1 & 2 Vict. c. 110.

Swift, in support of the motion, cited Murray v. Vipart, (1 Phil. 521), but relied chiefly on Hornby v. Holmes, before Wigram, V. C., and reported 4 Hare,

306.

The LORD CHANCELLOR observed, that the case before Wigram, V. C., was so shortly stated, that it was difficult to determine what the precise facts were; that the Vice-Chancellor's decision in that case proceeded on the authority of Hobhouse v. Courtney, (12 Šim. 140), which was quite in conformity with the known practice of the Court; that if Hornby v. Holmes went further, it would he dangerous to follow it; that, in the present case, there was nothing to shew agency on the part of the person proposed to be served with the subpoena. His Lordship accordingly refused to make the order.

Law 2. Law. June 2.

Pleading-Parties-Bill _by_residuary Legatees of deceased Partner.

R. Law and the executors of T. Law then continued the business with S. Law until February, 1843, when the executors of R. Law contracted to purchase the share of the other partners in the business. This agreement formed the subject of a suit for specific performance by S. Law and the executors of T. Law against the executors of R. Law, and on the 18th April, 1845, Knight Bruce, V. C., made a decree in favour of the plaintiffs. The present suit was instituted by the widow and children of R. Law, as residuary legatees under his will, against his surviving executors, and against S. Law and the executors of T. Law, stating that the plaintiffs were desirous of having the partnership business (so far as the estate of their testator was concerned) wound up, and the share of the testator ascertained, charging that there had been an inaccurate investigation of the partnership accounts by an accountant who had been employed to take those accounts; charging also in what particulars the accounts were wrong, and praying an account of the personal estate and effects of R. Law, and that his share and interest in the partnership might be ascertained. The defendants S. Law and the executors of T. Law submitted by their answer, that they ought not to have been made parties to this suit. The cause was heard before Knight Bruce, V. C., in April, 1845, immediately after the suit for specific performance before mentioned, when his Honor overruled the objection, being of opinion, that, on the whole, there were special circumstances in the case which made it right to retain S. Law and the executors of T. Law parties to the suit. (See report, 2 Col. 41). The case was now brought by way of appeal before the Lord Chancellor.

Cooper and W. T. S. Daniel, for S. Law and the executors of T. Law, contended, that they ought not to have been made parties; that to make them parties, there being no charge of collusion, was contrary to the established rule, and was not warranted by any special circumstances in this case; that the case of Newland v. Champion (1 Ves. sen. 105, and see 2 Col. 46) depended on special circumstances, and did not apply. [They cited Beckley v. Dorrington, (West. Ca., temp. Hardw. 169); Bousher v. Watkins, (1 Russ. & My. 277); Gedge v. Traill, (Id. 281, n.); Davies v. Davies, (2 Kee. 534).]

in support of the Vice-Chancellor's decision), after reThe LORD CHANCELLOR, (without calling on counsel ferring to some special directions in the decree, which had been objected to, but which his Lordship stated he did not consider it necessary to vary, proceeded to state the objection which had been raised with regard to parties, and observed, that the ground for making the persons in question parties to the suit was, that it appeared, from the facts stated, that the executors of R. Law were precluded from suing these persons in respect of their liabilities to R. Law's estate. His Lordship added:-This brings the case within the ordinary rule A., B., and C. having been in Partnership together, and as to parties, the facts being, that the executors of R. A. and C. having died, a Bill was filed by the resi- Law, on their own account, purchased two-thirds of duary Legatees of A. against his Executors, and against the partnership from the other partners, and this transB. and the Executors of C, for an Account of the Per- action has received the sanction of the Court. The sonal Estate of A.:-Held, affirming the Decision of executors of R. Law are, therefore, no longer in a siKnight Bruce, V. C., that, under the special Circum-tuation to litigate, in respect of this matter, with those stances of the Case, B. and the Executors of C. were with whom they have so dealt, whatever rights may properly made Parties, although no Collusion between be still existing in the legatees. The case then falls them and the Executors of A. was either charged or within the rule, which entitles parties interested in an proved. estate to bring before the Court the representatives of the estate, and those who, having duties to perform in reference to it, cannot be sued by those who legally represent it.-The appeal was, therefore, dismissed, with

R. Law, T. Law, and S. Law carried on business in partnership without articles. R. Law died in January, 1842, bequeathing his personal estate to his wife and children, and appointing four persons his executors. These parties continued the business with T. Law and S. Law till November, 1842, when T. Law died, appointing three persons his executors. The executors of VOL. XI.

W

costs.

ROLLS COURT.

HUDLESTONE v. GOULDSBURY.-June 7.

Will, Construction of.

that, at the death of the wife, 3000l. should be given to whom she willed, but that the residue should be distributed amongst his relations. Till her death, he meant the whole to be kept together. It was not necessary to say whether there was a gift to the widow by implication for life, though he was disposed to that opinion. But he was of opinion that the distribution was intended to take place at the death of the widow, and she would, under the residuary gift, be entitled to a life interest in the property, as undisposed of till her death.

that she took such interest for life either by implica tion or as residuary legatee, as it was clear, from the direction to invest, that the testator did not contemplate an immediate distribution amongst his relations. Bequest of Property invested in British or Foreign On the other hand, it was contended for the next of Funds, Bonds, or Securities of any Description-kin, that the testator contemplated an immediate disHeld, not to include Canal Shares. tribution amongst his relations,—a distribution by the Testator directed, that the Property invested in British widow in her lifetime. The widow was to have regard or Foreign Funds, Bonds, or Securities, should be into the claims and necessities of the testator's relations as vested in such Manner as his Wife, with the Advice of they existed at his death. his Executors, might consider most secure, and least Kindersley and M'Naghten appeared for the widow. liable to Fluctuation or Risk; and that the principal Roupell, Lloyd, and Bennett, for the next of kin, Sum of 3000l. should be at the Will and Disposal of Lord LANGDALE, M. R., said, he did not entertain his Wife at the Time of his Death; but the Residue much doubt about the construction as to the canal of the Property, over and above the 3000l., he willed shares: they were property which might be bought and that his Wife should distribute to his Relations, whose sold, and not securities for money, and he did not think relative Claims she was fully acquainted with; and that they came within the word "securities," and the he appointed his Wife residuary Legatee:-Held, that widow was, therefore, absolutely entitled to them. the Distribution amongst the Relations was not to take The great question was, as to whether the wife had a place till the Death of the Wife; and that she was life interest in the property invested in British and entitled to the Enjoyment of it till that Event. foreign funds, bonds, and securities. The testator Major-General Josiah Marshall, by his will, dated willed that it should be invested in such manner as his the 30th June, 1845, bequeathed as follows:-" All wife, with the advice of his executors, might consider my worldly property and estates whatsoever that now most secure, and least liable to fluctuation or risk. do or hereafter may belong to me, I give and bequeath, That was to be done as soon after his death as might be. and dispose thereof as follows:-I will, that all my He considered that direction quite inconsistent with an just debts and funeral expenses may be paid and dis-immediate distribution. He read it as a direction, charged; I do give, devise, and bequeath to my affectionate, dutiful, and dearly-beloved wife, Maria Letitia, all my plate, furniture, books, wine, carriages and horses, and all my goods and chattels of every description, with the exception of such articles as may be particularly devised in any following part of this will, or in any codicil at the foot of the same; and further, I give to my wife, Maria Letitia aforesaid, all my pay, and off-reckoning or arrears thereof, which may be due to me in my banker's accounts; and as for and concerning any property that is or may be vested in the British or foreign funds, or in bonds or securities of any description, I will, that the property may be vestVICE-CHANCELLOR OF ENGLAND'S COURT. ed in such manner as she, with the advice of my executors, may consider most secure, and least liable to POTTER V. WALLER.-June 2. fluctuation or risk; and further, that the principal sum of 30007. shall be at the will and disposal of my The Bill alleged that the Plaintiff had purchased the EnPartition-Discovery-Object of Suit. said wife at the time of her death, to whomsoever she will; but the residue of the property, over and above tirety of a Messuage, but that the Defendants claimed a the said 30007., I will that my wife shall distribute to Moiety thereof, and refused to produce the Instrument my relations, whose relative claims she is fully acunder which they claimed; and that the Plaintiff, bequainted with. I hereby nominate and appoint my lieving their Claim to be good, had joined with them in beloved wife, Maria Letitia, to be executrix of this my granting a Lease; and it prayed a Discovery and Parlast will and testament, and likewise to be residuary tition. Demurrer for Want of Equity, overruled. legatee of my estate; and I accordingly give and be- The bill in this case stated, that, in 1816, Mary Hart queath to her, for her sole use and benefit, and disposal and Ann Sawdon were tenants in fee and coparceners of thereof, all my worldly property and estates whatso- a messuage in Fenchurch-street; that Mary Hart deever, with the exception of the legacies and bequests vised all her moiety of the [messuage to Ann Sawdon, hereinbefore mentioned, or such as may be set forth in for life, with remainder to Francis Nodin, his heirs and any codicil or codicils at the foot of this my will; and assigns, for ever; that, by an indenture, bearing date I further nominate and appoint the Rev. W. H. Archer, 30th March, 1830, for the considerations therein menRobert Burland Hudlestone, Esq., and J. G. Hadow, tioned, Nodin's moiety in the messuage, subject to Ann Esq., to be joint executors of this my last will and testa- Sawdon's life interest, was conveyed to the plaintiff and ment, and request that my wife will defray all necessary a dower trustee; that, in January, 1833, plaintiff conexpenses to which these my executors, or either of them, tracted with Ann Sawdon for the absolute purchase of may be exposed in administering the estate. This suit the moiety of the said messuage of which she alleged was instituted by the plaintiff, Robert Burland Hudle- she was then seised in fee, and also of the remainder stone, one of the executors and next of kin of the tes- of her life interest in the other moiety, which was tator, to have a construction put on the will by the accordingly expressed to be conveyed to the plaintiff Court. The questions discussed were, first, whether by Ann Sawdon, by an indenture bearing date 7th eight Shropshire Canal shares of the testator passed January, 1833; that plaintiff entered into possession under the words "or securities of any description," or and receipt of the rents and profits of the said meswhether the testator's widow took them absolutely, assuage, and continued in such possession and receipt up residuary legatee. Another question was, whether the widow took any interest in certain property which was included in the bequest of property in British and foreign funds, bonds, or securities, beyond the 30007. given to her out of it. It was contended for the widow

to the time of the decease of Ann Sawdon; that shortly after the decease of Ann Sawdon, the defendants, Tho mas Francis Sawdon Waller and Mary Sawdon Willison, alleged that they were entitled to the moiety of the said messuage of which Ann Sawdon was seised as

under pretence of a partition. The plaintiff's allegations are so uncertain that the bill is demurrable on that ground. (Walburn v. Ingilby, 1 My. & K. 61; Hardman v. Ellames, 2 My. & K. 732).

J. Parker and Glasse, in support of the bill.-In the first place the plaintiff says, he is entitled to the entirety if the parties who made the conveyance to him had it, but he says, that the defendants claim a moiety, and refuse to disclose their title. It is not incumbent on the plaintiff in a bill of partition to state the defendant's title with certainty; he states clearly his own title to a moiety. He states on the bill that the claim of the defendants was so probable that he believed it. A statement of a claim to title by a defendant, admitted by the plaintiff, is a positive statement of the title. Besides, the bill states distinctly that the plaintiff and defendants have demised to Crowley, reserving a joint rent: that is sufficient to support the bill, for the interest created by the lease being joint, the plaintiff has a right to a partition of it, however small it be. (Baring v. Nash, 1 Ves. & B. 651; Agar v. Fairfax, 17 Ves. 533). The bill alleges, and that allegation must at present be taken to be true, that the defendants claim. How, then, can the defendants be allowed to say, at the bar, that they do not claim?-it is equivalent to saying, that the defendants have been guilty of a fraudulent misrepresentation. The bill admits that the defendants have some claim, and prays a partition; (Baring v. Nash, 1 Ves. & B. 551); and that is sufficient. (Parker v. Gerard, Ambl. 236). The allegation of a claim would alone be enough. (Red. Pl. 283, 188; Graham v. Coape, 9 Sim. 93; Balls v. Margrave, 3 Beav. 284).

aforesaid, and they alleged that a settlement had been no power to enable the commissioners to enter and made and executed on the marriage of Ann Sawdon, make a partition. The whole frame of the bill shews whereby the said moiety, of which the said Ann Saw- what is its real object. The plaintiff has purchased don was seised as aforesaid, had become limited, in the what he fears is an imperfect title, and by means of this events which had happened, to the use of Thomas Saw-bill he wishes for a discovery of the deeds in our hands don, husband of the said Ann Sawdon, subject to the life interest of his wife, and that Thomas Sawdon had devised the said moiety to the defendants, Waller and Willison, as tenants in common in fee; that, when such claim was set up, the plaintiff required the defendants to shew by what means they supported the same, and thereupon Waller produced to the plaintiff two papers, which he alleged were copies of the said settlement and will, but which papers were not attested copies, or in any manner authenticated; that the plaintiff had requested the defendants to produce the settlement, but that the defendants had not done so; that the claim alleged and set up by and on the part of the defendants appeared to be a probable claim, and the allegations made in support thereof were so plausible, that the plaintiff believed the same to be well founded, and, trusting to the promise of the defendants to produce to the plaintiff the original of such settlement, was induced to admit the claim of the defendants to the said moiety, and to consent to join with them in a lease of the entirety thereof to a tenant, and accordingly, by an indenture of demise of 1st July, 1843, the plaintiff and the defendants jointly demised the entirety of the said messuage for the term of twenty-one years, reserving one moiety of the rent to the plaintiff, one-fourth to Waller, and one-fourth to Mary Sawdon Willison and her husband; that the defendants have refused to produce the settlement; that, under these circumstances, the plaintiff is advised that he is entitled to a discovery from the defendants of their several rights and interests in the said messuage and premises, and to have a fair and equal partition of the said premises between them and the plaintiff, in order that their respective shares and proportions there- Bethell, in reply.-It is a principle that no man of may be allotted, held, and enjoyed in severalty. The shall come into this court taking advantage of one acbill then charged that the defendants ought to set forth knowledged ground of jurisdiction to obtain other obthe short material contents of the said settlement, and jects: it is manifest, that, if the statements on the bill the date of the will; that it ought to be referred to one be true, there is no ground for a partition. As to the of the Masters to ascertain what are the estates and in- lease, the statements tend to shew that it was obtained terests of the plaintiff and defendants respectively in by fraud, and if what this bill alleges were true, the the said messuage and premises; and that a fair and lease might be set aside. How, then, can the plaintiff equal partition of the same premises ought to be made claim relief on what he states to be void? A plaintiff between them, in order that their respective shares and coming here for partition must state distinctly that he proportions thereof might be held and enjoyed in severalty. only claims a part. If this suit goes on, there will be And it prayed that the parts and shares of the plaintiff an inquiry before the Master: if the defendants cannot and the defendants respectively, of and in the said mes- make out their title, plaintiff will take the whole, and suage and premises, might be ascertained, and that a fair there is an end of the partition. The principal part of partition and division might be made of all the said pre- the bill tends to a discovery, and not to a partition. mises between the plaintiff and the defendants, accord-It is in fact a bill for a discovery, and to set aside this ing to their respective estates, &c.; and that all the title-deeds and writings relating to the said messuage, in the possession of the defendants respectively, might be brought into this court; and that the plaintiff might be at liberty to take copies thereof; and that possession might be delivered to him of such parts of the said messuage as should be allotted to him. The defendants demurred for want of equity.

lease.

VICE-CHANCELLOR.-I will tell you how the case strikes me. That the plaintiff intended by his bill to get a discovery is perfectly manifest, because he himself states, that, under the circumstances, he is advised that he is entitled to a discovery from the defendants of their several rights and interests in the said messuage, &c. It is impossible to look at the story he represents Bethell and Dickenson, in support of the demurrer.- of the manner in which the defendants set up their title In order to make out a case for a partition, the plain-without seeing that he really means, if he can, to distiff must shew the title on the bill. (Cartwright v. Pultney, 2 Atk. 380). But the only title shewn is a title to an entirety; an allegation that a defendant claims is not a statement of title. In Stansbury v. Arkwright, (6 Sim. 481), the allegation that the defendant threatened to set up some outstanding term was held not sufficient. (Jones v. Jones, 3 Mer. 161). In Egremont v. Cowell, (5 Beav. 620), it is said, that it is not a sufficient allegation that a defendant alleges and the plaintiff believes. Then, during the existence of the lease, there can be no partition, as the Court has

pute it. But I think that the biter is bit, and that he has stated such a case as shews that he is entitled only to a moiety, and that, as to the title of the defendants to the other moiety, it follows, as a conclusion of law, from the circumstances stated by the plaintiff as to the lease-because that was evidence against himself—that the defendants are entitled to make the lease. I think the object will be defeated by the defendants putting in an answer admitting that the plaintiff is entitled to a moiety, and that they are entitled to the other moiety, and refusing under a late Order (28th Order of

under the settlement, if the Court should be of opinion that the clause of forfeiture operated with respect to the bankruptcy.

Malins and J. T. Humphrey, for the plaintiffs, argued, that the settlor evidently intended to confer a benefit personally on his grandsons, or, at any rate, to exclude the assignees in bankruptcy from all interference with the fund. It was true that the words imported a future sense; but many cases had been decided, in which the Court, to effectuate the intention of parties, had held, that such words might mean the past, and have reference to by-gone events. (Yarnold v. Moorhouse, 1 Russ. & My. 364; Wynne v. Wynne, 2 Kee. 778). [Knight Bruce, V. C.-There are also the cases of Tytherleigh v. Harbin, (6 Sim. 329); Giles v. Giles, (8 Sim. 360); Smith v. Smith, (Id. 353); and Jarvis v. Pond, (9 Sim. 549).] Swanston and J. Hinde Palmer, for Cornelius Charles Manning, insisted, that there was always a difference between the interpretation of words in a will and under a deed. The settlor intended a benefit to his grandson, Cornelius Charles Manning, who, as a bankrupt before the settlement, had given up all his property to his assignees, and they could claim no part of his interest in the fund in question. The clause of forfeiture could not operate against him, for he had not placed himself in that predicament in which the settlor said he should forfeit his rights. The words were future, "shall become bankrupt," meaning "shall hereafter become bankrupt;" not "shall be in the state of bankruptcy," but "shall become in that state." The dividends of this share ought to be paid to Cornelius Charles Manning, and ought not to be directed to accumulate; at any rate, whatever might be the conclusion to which the Court might come as to the clause of forfeiture now applying, it would hold, that the assignees were excluded from all participation; and, if the Court should hold the words of the settlement to have a retrospective operation, then it would only direct the dividends of this share to accumulate in execution of the intention of the settlor. [He cited Wilkinson v. Adam, (1 Ves. & Bea. 422), and observed on Wynne v. Wynne, before cited.]

ren, or during such period of his life as he shall have no such child or children, or wife, and he shall have forfeited his life interest as aforesaid, upon trust to accumulate the dividends and income of his one-ninth part or share in the said residuary moiety of the said trust funds, for the benefit of his children, as hereafter mentioned; and upon the decease of the said Edmund Manning, subject and without prejudice to the life estate and interest of his widow, (if any), in trust to pay, divide, and transfer the capital of the said lastly mentioned one-ninth part or share of and in the said lastly mentioned residuary moiety of the said trust funds, and all accumulations of the dividends and interest thereof, (if any), unto, between, and amongst" the children of Edmund Manning, as therein mentioned. The settlor then declared the trusts of one other oneninth in favour of Cornelius Charles Manning, his wife and children," subject to the same or the like conditions, and with the same or the like limitations over," as declared of the share of Edmund Manning. The deed contained a power of revocation, but which was never exercised as to these shares; but, by an indenture, dated 11th March, 1843, the settlement was revoked as to some other portion of the trusts, and new trustees were appointed of the funds, Samuel Manning having died in the meantime. The settlor died on the 28th February, 1845, without having in any way revoked the trusts of the settlement, so far as they related to the shares of Edmund Manning and of Cornelius Charles Manning. Seven days before the date of the original settlement, namely, on the 7th February, 1842, a fiat in bankruptcy was issued against Edmund Manning and Cornelius Charles Manning, who were partners in trade, and they were thereupon declared bankrupts, and they obtained their certificates on the 16th De cember, 1842. Edmund Manning died on the 26th August, 1846, intestate, leaving a widow and one child, and the widow took out letters of administration to his estate and effects. Cornelius Charles Manning was not married. Before the death of Edmund, the original suit was instituted, and after his death, and on the birth of children of other parties entitled to ninth parts of one moiety and other portions of the other moiety of the trust funds, bills of revivor and supple- Bacon and Berkeley appeared for the assignees of the ment were duly filed. The cause coming now to a two bankrupts, and contended, that, although the bearing, the questions raised were, as to the share of words imported, in their primary sense, a future meanEdmund Manning, whether the dividends for his life be-ing, yet still, upon all the cases cited at the bar, and on longed to his assignees or to his widow, and as to the share of Cornelius Charles Manning, whether the dividends belonged to his assignees for his life, or whether they ought to be accumulated for the benefit of any wife and children he might have, or, failing them, for the benefit of the persons ultimately entitled under the trusts of the settlement. By the joint answer of Edmund and Cornelius Charles Manning, they said, "that the fact of their having been declared bankrupts was well known to the settlor at the time when he executed the settlement of 14th February, 1842; that they were convinced that the settlor did not intend that the clause contained in that deed relating to any future act of bankruptcy should in any way refer to their then subsisting bankruptcy, and they submitted that they were each entitled to receive the dividends of their respective one-ninths." The widow of Edmund Manning, by her answer to the bill of revivor and supplement, claimed as administratrix to be entitled to all rights and interests in the matters in question in the suit, as her deceased husband's sole legal personal representative. As no dividends had been paid to any of the parties from the death of the settlor, there was an accumulation in the hands of the trustees. The widow of Edmund Manning claimed the accumulations on his share as belonging to her husband's estate, and the future dividends from his death in her own right under the settlement, or claimed the whole in her own right

those referred to in the observations of the Court, they might and would be interpreted to have a retrospective effect. [Knight Bruce, V. C.-Suppose the words had been "until he shall go to Rome," or " until he shall marry," and, in the former case, the grandson was at Rome at the time, and in the other case the grandson had clandestinely married?] In either event, counsel submitted, the interest would have passed away from the grandson. He would in each case have fulfilled that condition, or gone into that state, up to which, and until which alone, he was intended to reap any benefit, and he would have forfeited his benefit under the settlement. There was no difference between those two supposed cases and the present. Edmund Manning had already fulfilled that condition, on which he was to take no benefit, and as he was only declared a bankrupt, but had not received his certificate until long after the date of the settlement, namely, the following December, and as, by law, all the property which could come to a bankrupt up to the time of his certificate passed to his assignees, this interest belonged to his assignees, and the same observation applied to the share of Cornelius Charles Manning.

Rogers, Borton, and Begbie appeared for other defendants.

KNIGHT BRUCE, V. C.-The words to be construed in this case are these: "or until he shall become bankrupt," and "after his decease or upon his becoming