1843.

HAVERGAL

v.

HARRISON.

signation of any particular person; there were words creating a tenancy in common, and a limitation to executors, administrators, and assigns; and the question seems to have turned, partly upon those words and partly upon the limitation.

In this case, it appears to me that the use of the word "sister" in the singular number can only apply to the sister of his wife, and his own sister then in being, and that, consequently, as to them, there was a designatio personarum. The word "brothers," supposing it to have been used in the plural number in both cases, would have admitted of a more comprehensive construction; and, in one case, it was not accordant with the fact as now ascertained to have been then existing. It creates some ambiguity, but not enough to overweigh the effect of the word "sister." It seems in the highest degree improbable that the testator should have meant to designate the sisters personally, and have meant an unascertained and unknown class of persons by the word "brothers" in the same clause.

I am of opinion that the brothers and sisters living at the date of the will were the legatees, and that the shares of such of them as died in the testator's lifetime lapsed and now belong to the next of kin.

1844.

LADY HARTLAND v. ATCHERLEY.

TH

HE Defendant Lord Hartland was, in 1836, found lunatic by inquisition in Ireland, and Dennis Mahon was appointed committee of his person and estate. Lord Hartland and his committee were resident in Ireland.

Mr. W. H. Clarke moved, that Dennis Mahon might be assigned guardian of Lord Hartland to answer this bill, and defend the suit. He stated, that the usual course to obtain the appointment of a guardian ad litem to a lunatic Defendant was, to present a petition of course for a commission to assign a guardian; but he argued that the Court might dispense with a commission, as in the case of an infant resident abroad. (a)

Jan. 11.

It is not the
practice of
the Court to
appoint a

person resi-
dent abroad
to be guardian
ad litem.
A. was
found lunatic

in Ireland,
and B. was
appointed his
committee
there. 4. being
a Defendant
to a suit in
application
England, an

was made that
B. might be
appointed
guardian ad
litem. Held,

that the pro
per course
was to get the
Irish commis-

sion recorded

The MASTER of the ROLLS said, that it was not the practice of the Court to appoint a person resident abroad to be guardian, as the Court would have no power to compel obedience to its orders; that, unless the interests of the committee and lunatic were inconsistent, in England, they ought to answer together; that here the parties might get the inquisition recorded in England under the act (b), and then the lunatic and committee could then for the answer together.

(a) See Smith v. Palmer, 3 Beavan, 10.; Shuttleworth v. Shuttleworth, 2 Hare, 147.;

Drant v. Vause, 2 Y. & C. (C. C.)

524.

(b) 1 W. 4. c. 65. s. 41.

under the

1 W. 4. c. 65. s. 41., and

lunatic and committee to answer toge

ther.

1844.

Jan. 11.

The 1 W. 4.
c. 36. s. XV.
Rule 17., does

the Court to

costs of a De

ROBEY v. WHITEWOOD.

THE Defendant was committed for contempt in not answering. (a) He put in his answer, but being

not authorize too poor to pay the costs of the contempt, it was moved order that the on his behalf, that it might be ordered, under the Contempt Act (b), that the Defendant's costs of contempt might be made costs in the cause, and that the Defendant might forthwith be discharged without payment of

fendant's con-
tempt for not
answering,
and who is
too poor to
pay them,
may be costs

in the cause.

costs.

Mr. Teed, in support of the application, referred to the 1 W. 4. c. 36. s. 15. rule 17., by which it is enacted "that in any other case of a commitment for contempt, not herein specially provided for, the Court may, upon any such application as last aforesaid, or upon any such report as aforesaid, make such order for the discharge of the prisoner, upon any such terms, and making, if the Court shall see fit, any costs in the cause, as to the Court shall seem proper."

Mr. Shebbeare, contrà, was not heard.

The MASTER of the ROLLS.

I do not think I can make this order, the effect of which may be, to make the Plaintiff pay the costs of the Defendant's contempt. I doubt whether the seventeenth rule of the act gives authority to the Court: it provides only for "any other case of a commitment for contempt not herein specially provided for ;" and the act contains this very humane provision, that the prison shall be visited

visited by an officer of the Court, upon whose report the Court may make provision for payment of the costs of a party in contempt, not in the way which is here asked, but out of the suitors' fund.

1844.

ROBEY

บ.

WHITEWOOD.

THIS

IRELAND v. EADE.

HIS was a petition of the Receiver in the cause, for payment of certain costs, charges, and expences

which he had incurred.

It appeared that in 1832, Mr. Smallpiece the petitioner had been appointed Receiver, and that he had incurred considerable expences in obtaining possession of the property, in consequence of the violence of one of the Defendants. It was also admitted that he had

incurred other costs, charges, and expences in the per-
formance of his duties of Receiver, which had not been
paid. He had, in 1834 and afterwards, made various
applications to the solicitors of the parties, requesting
them to obtain an order for the taxation, and
orders had been made to that effect, which however
had failed, upon technical objection afterwards taken
thereto.

some

In 1839, Mr. Davison had obtained the conduct of

the cause, and he promised to make an application to
the Court respecting the petitioner's claim; in 1841
the Receiver had been discharged.
No further steps
having been taken to satisfy the Receiver's claim, he
presented a petition for the taxation and payment of his
costs, charges, and expences.

1844.

IRELAND

v.

EADE.

Mr. G. Turner and Mr. Prescott White, in support of the petition.

Mr. Kindersley, contrà, contended that the Receiver ought not to have presented this petition, and that it had been done without any proper communication with the other parties; he urged that the Receiver ought to pay the costs of it.

Mr. Stinton, for the Plaintiff.

The MASTER of the ROLLS.

A Receiver ought not to present a petition or originate any proceedings in a cause; any necessary application should be made by the parties to the suit. That is the general rule; but there is some difficulty in adhering to it, and many exceptions to it have been allowed. Sir John Leach, however, did adhere to it with considerable strictness.

In this case the petitioner was appointed Receiver twelve years ago, and all acknowledge that he incurred costs, charges, and expences in the execution of his duty, which he is entitled to receive. He does not seem to have been desirous of presenting a petition of his own, and he carefully and properly applied to the parties to the suit, in order that they might take proceedings for the satisfaction of his claim. I do not find that they were unwilling to do so; but unfortunately they set about it in such a way as to produce no result to the Receiver. An order was even obtained, but without due service, and it could not be acted on. This was not the fault of Mr. Davison, who had not the conduct of the cause till 1839. Though he knew of these costs, charges, and expences, and seems to have intended to

provide