[*411]

Herring v. Clobery.

*The motion was supported by an affidavit, made by the plaintiff, stating that it was of the utmost importance to him and to the interests of his daughter, the infant coplaintiff in the cause, that he should have his personal liberty, to enable him to prosecute his appeal, and to instruct his counsel and solicitor, and otherwise to assist in the conduct thereof.

Mr. G. Richards and Mr. Wright, for the defendants, said that, whatever might be the grounds on which the plaintiff sought to be discharged without clearing his contempt in not paying the costs of the suit, he could not be heard at all until the prior costs had been paid.

Mr. Romilly and Mr. Loftus Wigram, for the plaintiff, submitted to the objection: and the costs incurred prior to the decree, were paid, in court, by some person on the plaintiff's behalf.

Mr. Romilly and Mr. L. Wigram, then proceeded with their motion. They cited King v. Bryant,(a) Wilson v. Bates, (b) Ricketts v. Mornington, (c) Meade v. Norbury, (d) and Gwynn v. Lethbridge.(e) But they relied principally upon Lord Eldon's judg ment in Roberts v. Totty, (f) where his lordship says: "In a case that occurred yesterday, on a motion to discharge proceedings for irregularity, the appeal was lodged before any proceeding for the costs had been commenced; and the distinction taken, by Mr. Newland, between appeals presented before and after a step taken for the costs, appeared to me to be very sensible. There

would be danger in going to this extent, that an appeal [*412] lodged *after a party had begun to pursue his remedies for costs, perhaps with the very object of preventing the payment of those costs, should stay the proceeding for them." They added that the plaintiff, in case the court should think proper to discharge him, was ready to give security for surrendering himself, if his petition of appeal should be dismissed.

Herring v. Clobery.

THE VICE-CHANCELLOR:-I cannot grant this application: for, in the first place, it is not a rule of this court to interfere, as a matter of course, to stay the proceedings under a decree, merely because it is appealed from; and, in the next place, it is by no means the practice of the court to interpose in order to stay a proceeding the only object of which is to compel the payment of costs. Here the bill was dismissed with costs; so that all that the party, who now asks for the interference of the court, has to do, is to pay the costs.

The 46th General Order of 1828, directs that every application to stay proceedings upon any decree or order which is appealed from, shall be made first to the judge who pronounced the decree or order. I always considered the essence of that general order to be, that the judge, who pronounced the decree or order, was the person best able to determine whether the party who was dissatisfied with it, had a fair ground for appealing from it. If the judge should see that the case involved important and diffi cult questions, and that it was probable that, if the application were not granted, the thing which formed the subject of the decree, would be placed in jeopardy and be irrecoverable in case the decree should be reversed, then it would be his duty to interfere in order to stay the execution of the decree. But, where

*a decree has been appealed from, and no ground is sta- [*413] ted for staying the execution of it, except that it may be reversed, the court will not interfere.

Now, with respect, to this particular cause. It was argued at considerable length and with great ability; but there was no difficulty about the law of the case. It is true that I reserved my judgment upon it; but I did so because the parties, by what they had done amongst themselves, had involved the matter in great perplexity; and, therefore, it was necessary for me, before I could determine what ought to be done, to read very deliberately through the pleadings and evidence in the cause; and I exercised my best judgment in pronouncing the decree.

Then what was the course which was taken by Mr. Herring,

Turner v. Hind.

against whom the decree was pronounced? He did not interfere, in the first instance, to stay the proceedings as to the payment of the costs directed by the decree. The defendant's bills of costs were carried in, before the Master, to be taxed. The taxation was proceeded with, and was completed in May, 1841. On the 5th of June, Mr. Herring was taken on an attachment for nonpayment of the costs; and it was not until the 29th of November, that the present application was made.

If this case had really been one in which the court ought to interfere, the application to stay the proceedings ought to have been made immediately. Instead of which the plaintiff has al lowed all these proceedings to take place, and himself to be placed in contempt, before he made the application. So that, if this

case had been one in which the court ought to interfere, [*414] he *has placed himself in an unfavorable position for

the purpose of being heard; and, being in that position, he has made an application which rests only on the ground that, possibly, the decree may be reversed: and that, as I said before, is not a sufficient reason for staying the proceedings under the decree: and, consequently, the motion must be refused with costs.

TURNER v. HIND.

New Orders of August, 1841.-Parties.-Construction.

1841: 10th Dec.

The 30th Order of August, 1841, does not apply to a case in which the equitable interest only, is vested, by devise, in A. and B., in trust to sell, although they are empowered to give discharges for the proceeds.

UNDER the settlement on the marriage of John Turner and Mary Hind, an estate was vested in trustees in trust for the husband and wife for their lives successively, and, after the death of the survivor, in trust for such of their children or grandchildren as Mary Turner should appoint by deed or will, and, in de

Turner v. Hind

fault of appointment, in trust for all the children of the marriage who should be living at the death of their surviving parent, and for the issue of such of them as should be then dead.

Mary Turner survived her husband. By her will, made in execution of the power, she appointed the estate to two persons, one of whom was the plaintiff, in trust to sell and divide the proceeds amongst certain of her children, and she declared that the receipts of the appointees should be sufficient discharges for the purchase-money. The object of the suit was to have the trusts of the will carried into execution under the direction of the court.

At the hearing of the cause, it was objected that the suit was defective in respect of parties; as some of the persons *interested, under the will, in the proceeds of the sale [*415] of the estate, and also some of the persons interested,

under the settlement, in default of appointment, (a) were not made parties.

Mr. Bethell, for the plaintiff, relied on the 30th Order of August, 1841, which directs: "That in all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators, in suits concern. ing personal estate, represent the persons beneficially interested in such personal estate; and, in such cases, it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit. But the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties."

(a) One of the questions in the suit was, whether the appointment was valid. It was clearly bad at law; as the appointees were not objects of the power.

Hudson v. Maddison.

Mr. Wilbraham and Mr. Freeling also were counsel in the cause.

THE VICE-CHANCELLOR :-It is quite evident that this case is not within the 30th Order of August, 1841. That Order, on the face of it, applies to those cases only, in which a real estate is vested in trustees by devise, and such trustees are com[*416] petent *to sell and give discharges for the proceeds of the sale. Here, the persons who are empowered to give discharges for the proceeds of the sale, are not persons in whom the legal estate is vested by devise. Consequently, neither they nor the trustees of the legal estate under the settlement, will be able to make a good title, unless all the cestuis que trust are made parties to the suit.(a)

HUDSON v. MADDISON.

Nuisance.-Pleading.-Parties.-Mis-joinder.

1841: 21st Dec.

A bill was filed by five several occupiers of houses in a town, to restrain the erection of a steam-engine which would be a nuisance to each of them. Held, that each occupier had a distinct right of suit, and therefore that they could not sue as co-plaintiffs.

Injunction.

On a motion to dissolve an injunction, the defendant may rely on an objection, although it would have been a ground for demurring to the bill.

THE bill was filed by five persons occupying houses in the town of Louth in Lincolnshire, for an injunction to restrain the defendant from proceeding to erect a steam-engine and chimney in the neighborhood of the plaintiffs' houses, on the ground that the steam-engine would prove a nuisance to the plaintiffs

An injunction having been obtained, ex parte,

(a) See Weatherby v. St. Giorgio, 2 Hare, 624; and Osborne v. Foreman, Ibid. 656.