Court Of Chancery, Thursd...
The Times, 1824-02-06T00:00:00

LAW REPOR2'. The LoiiD CIHAUCELLoa havitg ,tken his seat, Mlr. SISAjfWtEiLL sald that he had, agreebly to his l.rdship's di. rection, looked at the deed of 1812, and it appeared to him that thotgh tlie 6wners-of the 7 ttls of thc theatre had a right to demise their propferty, togetl er with tht power over it, they colwd not rcs'erve an ngregate proportloh of that power in c-ase of such de- mise. That being the legal conclusion, Mr. Harris, Jor whom he now. appeared,-was perfecdy vwilling that DMr. Const, in his right as propeistor of slcl-llth, should be pacid his aliquot part of the 1,5001. The LouD CjSA-NCCLL<OIt asked it' the deed of 1812 did or did not provide that the whole of the proceeds should be applied to the discharge of the incumbrances? If it did, and there had been no subsequeult liberation of the property fsom the obligations of that agrceement, and if the whole system a3 not been quietly and tacitly sltered with the general consent and concurrence of tbe partdes, mute3 not the Court look to the fulflmhent of that deed in the first place?O br. Sll.%DVWs..L said, that, as he understoox, ali the creditors un- der the deed of 1812 had been satisfied, except a fewv wbo had agreed to a postponement, therefore his Lordship had no question before him as to any interests of parties to be provided for u-dLr the deed. The Lo1tD CHANCELLOR proposed to put Mr. Const and his life.tenancy out ofthe quesdion for a mnoment; then, he would aslc, vhat right was there to postpone the discharge of any bicumbrances for which the deed of 1812 provided ? Mr. S71ADWELL could only anaswer, that according uto his instruc. ejous, a31l those pardies were s2tisfied. The LORD CHE7A?scerLou.-Theu it comes simply to this-there has been enough got in to Satisfy all the parties interested, except Mt. Const. Mir. SHAD WET.T said, that Ir. Narris was willing that as large a fund as possible should be made available for the creditors. He ws satisfied that no higher rent could be obtained than 12,0001.,and he was quite willing that Mr. Const should receive the proportion of his one-eighthl out of that. The LowD CHANCELLOR said, that ifthe parties couid have had the good sense to keco out of court, he knew verv vrell what was best to be done for tlfeir mutual advantage; but if they would not have that discretion, and insistel upon the Court's interference. what could the Court do in the face of these proceedings but take on account the profits and proceeds of the concern, and apply them from time to time according to the contents of the deed. It would be well enough for Dlr. Const to receive his aliquot part of the rent of 12,0001. ; but 51tr. Ilarris and the lessees were not then tl say that they were isortnr of the oblig2tuons under which they took to the property. TRhey could only have jt as Mir. Harris had it. The payer of the rent must stand in 31r. Harrs's shoes^, aad the pretits ofthe theatremust beapplied according to the deed. If they yielded more to DIr. Corst tlhan his 1,5Q01. a-year, he would be entitled, as L he m,,eanias scn t nn with the defain,-rv. if thev vielded less, The solicitor (Mr. WHIT1ON) stated, that his clients had beaTd it now, for the first time, that the creditors had been satisfictd, except a few wlo hlad agreed .o postpone their claims. The LORD CSANCELLOR wished to know by wlhat right tbe holders of the 7-Sths had appointed a coinmittee of rnanperrmcrit. Vr. SUAJDWELL ssid, that the theaue had never been without a committee of management. The LoUD CHAN CELLOT said, that he saw no mnention in the deed of any powver authorizing them to appoint a coetemittee of oa- nagement, though he shoulcl be most happv if ht' could discover it, as that would save him the troubleof appointing that most niischiev- ous of all animals that could be appointed--a lChancery manager of a theatre. He knew that in general the usage of the theatre umust be the rule of the Court: but tiere was nothing in either whliCil gave the right to paTticular individuals (parcel of the general interest) to appoint a manager. AIlr. Robinson; for instance, night be the most proper person alive to be the treasurer of this theatre. But the holdets of the 7-8rbs could lhave no right to appoint him until ther bad called ih Mr. Corst, to know cspecialy if he should be appointed. Air. SUND wELL, for 51r. Harris, had nothing miore to say, fhan that they awaited tor his Lordship's judlgment. The LoRD CHANCELLOR thought it would be awvisable not to give judgment in the absence of :1lr. flart, who was confined from illness) and therefore he delayed it tiU to-mtorrow morning. THOINIPsON V. THO31PSON. This was a caqe affecting the right to sue in formna paueperis. Mr. SHADAVELL, for the defendant, raised the qeuestion. Eliza- beth Thonmpson, the plaintiff, had been called upon to take out let- ters of administration for her hosband's effects. wv*icl she computeI to be of the value of 8001. She had filed tlee ire.-ent bill, to whichl an answver had been put in, which was followed by replication, and an amnended answer. But before the suit shoultI proceed further, he pra ed the Court that the plaintitF might be restrained from suing infornwspavprris. Theground of the application was, first, that thle plaintiff e-as not seeing in her own right meres,', bht ue:der tile administration oi' her husband's property, secondly, that there was a precedent expressly against allowing proceedings to be carried on in formza puripcris, by a party wiho had taken out letters of admninis- tration. The case in point was that of " Paia lise and Sheephard," which is to be fbuind in Dixon, but inalch more rorrectlv in .11r. Beanies's book of costs. The plaintif' lend filed a bill, which was answered; there wvas a replication, whicli called for an amnended eum- swer ; and the defendant had hee-i putt to great ezpensc in calling witnesses. Just before the judgment, the plaintitff applied to be ad- mitted to plead i/,.efrma paeperi.s, whlich t.,e defendant opposed, al- legeing that it was only done to deprive him of costs, the plaintiff having no sort of equity in the case. The Court held that the plaintiff; having takeu out letters of administration for some property, it could uot be assumetd that he was not worth 5el., to which fact apartyreeustswearclaimiagtheadvantage ot'the statute, by thec prilnciple of whichl the courts of equity wvere guiided. Alr. BEAtEs, for the plaintiff. c-ntended thtt tie pr'eciple had nott been accurately statetl, and that the cases had no resemblance. In the case of " Paradise and Sheplsarel," which hc had hiaeself ex- tracted lroi-c the Registrar's book, tile grouind of the application was, that the plaintiffwas withoect the shatlow of an equity; and that having proceeded vexatiouslv and to the great cost of the defendant, until the pgceddic a were ripd for judgnuent. lhe lead sought the benefit of that plea to scrceee himself from the conseummences of his own litigioeessteit. Therightofsning as a pauper en eetIre dreit was no part whatever of that question, nor, indeed, had it ever been de- cided in anyt case. He apprehended tilat asthe sratute dlid not di- rectly uppli' to this court, his Lordship. must he guided by thee ana- logies of the practice in other courts. Time rutle at conlOll la:r, alS 't was expressly laid down in a case which was to be fouried in Baron Hullock's book, was, that a detfendant shoeled not disnauper a plain- tiff, if he continued to plcad to the record after the entrance of' thr plea inforneapaueperis. Inthe prescuet case there had been bill, answer, replication, and amended answer - and before the fi-st answer was put in, the plaintiff had been admitted to plead in pan- pernsmn. ilLr. birAD WELI. saia tlbat did not anpear uoon the papers. Dlr. BEAtMEs said, that the defendant n;nst have had notice enough to exclude this application in aRy ease, as the amended bill was on unstamped paper, and of that bill his own clerk nmust haven taken acopv. The LOReD CHANCEeLrLon said that thev must prove a nore sa- tisfactory notice of tbe plea of pauperism. As to the case of - Pa- radise and Shephard," lie hail by Iiin thie manuscripts of 11r. Brown, irho was of counsel in1 the cause. He would lo05 into them to.night, in order to sec whether there was any thing instructive to be found under that gentleman's title of firmna paupcris, and infom Mr. Beatues of what he should meet with. Mr. BlEAtES wtas thankfal to hiis lordship. fie would get a shott affidavit to prove the notice; but the case of ' Pi.radise and Shep- hard" would be found to contain r.othing upon the point ot suing as a paulperen attire dr-oit. The LoenD CtIAXCgLI.ULt-Do you get thic affidavit, aidl 1 will look after Mr. Brown. TAXATION OF COSTS. In a case in wlich a solicilor had delivered his bill rather hastily, his dient had handed it in to be tased. .Mr. BEASZ11S wished to avail himsclf of the te.chnicalities of the statute, which directs, that no solicitor shall be aIlowed to sue his client for costs, unless he shall have delivered in his bill within a month, properlv signtd. The client in this case was a most liti- gious person, and was always giving thc solicitor assurances that he would rewratd him with additional remuneration for his extraordi- nary pains and attention. He then sent for his bill, which vteas made out in a hurtry, chiefly with a view to guide this generous client as to the atount which he was to pay, who immediately sent in the bill to the aMaster to be taxed. Mr. Rose opposed the application. He apprehended that there was no precedent ofrallowing a solicitor to v;ithdraw his bill from; the taxation of tlte Waster. Mlr. BrcAUes said. thar he did not wish to wvithhold the bill from ta-tznnt h,,t nnt, *n # ,-- it h..t- --ith . -i- t- ,,,akinL it ont more correctly. Thle LoRDl CILt CELLOR iinaghittd that the statute only applied tO actions, and that it w's nmerely by analogv that it was adopted in courts of equity: for long before the passing of it, this Court had referred bills of costs to the Aaster for taxation. He coutldl nt con. cehle, however what power tbe Court had to deprive anv suiitor of the benefit of having hisbill of costs taxed * nd certainly the dp, sire of the solicitor in this case to go into the office in somewhat bei t;r company, though natural, was not a g6od grounct of athority. The intention both of the Legislature and this Court was, that every solicitor's bill should be taxed. It had been rutmoared, he supposed vcry falsely, that there were solicitors who woulh not taklc up a cause until they had an assranice that their bills should not be taxed. Ile only wished thac the application in suich a case, if there were such a one, were brought before hiim. He wvoult strike the nmost eminent solicitor in the country ofF the rolls for tllat offence. GRAY V. 331fSTOL CANAL CnrMlANY. An injnnction had been obtained to restrain the proprietors from cutting into thelandts of the plaintiff. M1r. HFALD now, moved the Court to dissolve thl injunction. An act ofParliainent had been obtained to cut a canal from Morgan's rill, on tbe Avon, to the river Taun, in the parislh of Taniion. Theplan lav directly througlh the lands of an estate called Btack. land, of which Mrs. and the Rev. Air. Gray iere propr3e. tors. l'hey had obtained this injunctiofl, and both the title of their bill and the prayer of it were surprising. They appeared as plaintiffs for themselves, and all the persons who either were, or are likely to be, in any way injured by thc failure of the work * and they prayed, first, that the Court would decare the powers of the act 51 Geo. IIL to be wholly inoperative-tat it wou]d prevent thedefendants from roceeding; or, in the alternative, that it would direct them to pay in 10,0001. to the Bank of England, there to stand in the name of the chairman and others. Co(unisas sioners of Sewere, to abide the charges of waste and injury to the lands thirough which they proceeded. It did so happen, that o, fiftR miles through which this canal was to run, there was an interme- diate portion through which it was questionable wvhether they would cut the canal or not. This contingenec was provided for by the Par- liament, by enacting tenat the Companjy should not cut that portion of the canal untl they had commenced with the two ends of it: and if they did niot begin within four years, they were not to be allowed to cut at all. it' they did cut, thev were to deposit 10,0001. in the name of the Chairnan and Commissionets of SpWem, who expected that the drainage might be effected by the woik, in CeSe any iniitry should accrue to the subject of their charge. They relinquished that pordon of the plan, agreablyro the powers left theirs by the act, and there 'was no rea- _oti left for the Commis.sioner requiring this deposit. The plaintif' iad'vilthinigwhatever to do either with thepowersof theactor thqs.6fthg Commissioners ; bebhad no injury to complain of; he 'iirno fit repteSentative, had there been any party complaining, asid .ilsi'was'iote. Thieinjuncion m7ust ibe dissolved. il'.=81ti7'AD -ELL conleillte for tben continuance of the in uncti0on, as the Utsinpan:y hiad not fiulfihd asy oF the conditions untler which tbPisliiiiiltlt bid intrasted to ieni the powers of the act. - Mrs.OSg'w'* foilowradon tlte sa'te side, and contendedl that the :ork'coii d not proeeds under tieaet, beaeeuse. the preptietors were boinld'A*iflstflCC'within fosr Years,whicla they had not done. yJ&iiysacIjledged that thsey I'aa ibindoneel their plan-there ;wt?9ien^tft'Wt7oelr pcoeedlh g With it, and therefore the r)aln. tift vas likely to be injured ia his proptrty if they inerely-vtitol ro cut through his lands. - l1ir. HEALD repliedL The LonD CGn-NCELLO. Considerea that thse proprietors Nold' only be allowed to proceed according to the _Wers leftI bhem by t-W act. In this case tliose powers were peculiatly amr,ple ant it..wis the businebs of this Court to see that theiratuse'di4ngW work'any injury to the parties tbrough-whose lands the projected-lina of canat was to go. There w:s somnething very loose in the option-left them, cithez to cut that intermediate portion of the line, cO1txisting of- 4 miles, or not, for which he .could not account. The iParlianment granted these bills upon a rathei credulous faith in the declarations of parties; and it was not to U4:disgaised that the uttoost stretch of cunning was resorted to iy' tbem for the attainment of their object. Firat of all they made the committees believe, by God knoyns how many engineers and other bonest people, that the psojected work would csrtainly be carried into eftect at an ex- pe%e, suse of 700,000L It was quieilly found that suma ould be equal to one-fouth of the expense. Then the custom was, as he understood it would be in the present instance, to come back to PaTliamnent for otber powers to enable them to draw another hun- dred thousand or two from the good people of England. In all questions of this kind, therefore, it particularly behoved this C'ourt tO confine the projectr or speculators strictly within the limits of the act, to vhich tney ihemael'es wonld be ready enough to recut for refuge if any actions of trespass were tO be brought againat them.- Furthler he.aring to-morrowu.- ,COURT OF CHANCERY. TrunSDAY. Fz. 5. O0VE2WT.GARDEN TE AIt_-CO'ST V. HAItUIS.