power of appointment, which was given to her in default of issue, and therefore, passing altogether over that right which the plaintiff alleges was in Susan. She died in the year 1820, and, thereupon, her appointee, George Dike Fisher, took possession under colour of that appointment. No doubt, under those circumstances, he might think that he was entitled to take it under the appointment; he might consider that this was so treated in the family as if there was an effect given to the remainder over in default of issue. Unfortunately we have no evidence about his view of the case at all; but a striking part of this argument, I think, is this, that I am called upon to assume that he had a perfectly clear and familiar knowledge, at that time, that he had no right at all under that appointment, and that the estate was in point of fact vested in the heir-at-law of Susan, who had died many years ago; that is not the only point relied upon here, but it has been urged, in the course of the argument, as so clear that nobody could doubt it. Now G. D. Fisher being in possession, either knowing it or not knowing it (which we must come to a conclusion upon, perhaps, afterwards), we find not very long afterwards, but in the course of the next year, the plaintiff, whose usual residence is said to have been, and, I suppose, was, at the Cape of Good Hope, arrived in England; and then took place that very matter which is said to be the foundation of the imputed fraud. Look now how we stand: there was Mr. Prideaux, a solicitor, carrying on business at Bristol; he had married a daughter of George Dike Fisher, the appointee of Mary Langley; he was the trustee of the will of Robert Langley, for the benefit of the plaintiff and his brothers; that was his situation. As such trustee he had duties to perform towards them; as such trustee it was natural and in every way proper that he should be in communication with them: he was in the situation of an accounting party to them. They were cestuis que trust; abundant motive therefore existed for communication taking place between him and the son of Benjamin Langley. This bill alleges that he was solicitor of the plaintiff, and also solicitor of George Dike Fisher. As the plaintiff has alleged in the bill that he was his solicitor, the defendants have taken advantage of that,

although there is no other proof of his being the plaintiff's solicitor than that allegation; and if it had not been so stated in the bill, and the defendants so insisted that he was the plaintiff's solicitor, I must say that I should have been very much inclined to doubt the fact, because there were sufficient reasons to apply to him without.

Now we come to consider what really is proved, upon sufficient allegations, with regard to the communications which took place between them. It is not proved that Thomas Langley, the brother, went expressly to Bristol for the purpose of inquiring into this matter, and made his application to Mr. Prideaux as the agent or solicitor of Fisher. There is no direct, no immediate proof of any single thing that took place between Thomas Langley and Prideaux. That there was some communication relating to this matter, is what I firmly believe, from the correspondence which afterwards took place. Somehow or other it happened that Thomas Langley, who was the brother of the plaintiff, was the medium of a communication between Prideaux and Benjamin Langley, the plaintiff, in respect of these matters; but that correspondence does not in any way shew what passed between the parties, except in its being stated by Thomas Langley that his brother had been convinced that he had not a just claim, and Mr. Prideaux, answering to that, that it was gratifying to him to find that the plaintiff "took such a correct view of the matter." I think those are the words that especially apply to this part of the subject, and they are in the correspondence, and it is in that way I obtain any knowledge of them; but as to anything like direct evidence of that which took place between Thomas Langley and Prideaux, there is none. Some time afterwards, Prideaux advised George Dike Fisher to levy a fine. Now about levying

fines, and the fraudulent uses which may be made of them, and have been made of them, I have very little to observe. I believe it has been the most common thing in the world for men who think they have a just title, under circumstances which might create a great delay and very expensive litigation, to cause fines to be levied, or to levy fines, for the purpose of shortening the time within which such claims may be made. I do not say that a fraudulent use

may not at many a time have been made of that proceeding; that many a fine has not been levied by a person, who, in the interior of his own heart, and upon the advice that had been given him, did not very well know that there was another man existing who had a better, a more legal and equitable right than that which he then possessed, and has not adopted those means to cut off such a claim; but all that is to be said about it is, that those means of strengthening a title have been over and over again and constantly adopted. If there is a direct fraud practised upon some known person in executing the fine, according to the various cases which there are in the books on the subject, this Court will set it right; but I believe it has not been considered as sufficient evidence of a gross fraud, that the party who did proceed to levy the fine had very good reason to believe, that if he did not levy the fine, there would be an adverse claim established against him. Mr. Prideaux advised the levying of a fine, and the fine is levied; now, many years afterwards, we have something occurs, which is supposed to throw light upon that which took place in the year 1821; and a Mr. Price, who was present at an interview between Mr. Prideaux and Mr. Thomas Langley, sets forth the conversation which he then heard, in which conversation it seems to have been stated or admitted (by whatever term it may be right to call it) by Mr. Prideaux, that, in the year 1821, he did state that the plaintiff had no title. When I am asking for evidence of what took place in the interview between Mr. Prideaux and Thomas Langley in the year 1821, and I am desired to come to an express conclusion on the subject from something which Prideaux stated to Thomas Langley, in the presence of Price, in 1830, there are various things to be taken into consideration first of all, has the attention of the parties been drawn to this in the pleadings? Was it ever stated or alleged? or is it brought forward here, that as evidence of the communications which took place in 1821, there was such and such a conversation, which took place in 1830? I believe that there is no hint of anything of the kind given in the pleadings; and it is a rule of this court that you are not to have conversations and admissions between people produced as evidence of certain facts, un

less you draw that expressly to the attention of the parties in the pleadings. Well, but suppose it had been, then comes another question, and a very important one,-whether Fisher is to be fixed with such a fact as against his interest, because Prideaux, in the year 1830, thought fit to state to Thomas Langley what had taken place in 1821. I am really under the necessity of coming to the conclusion that there is no evidence that the Court can properly consider as binding and convincing evidence of the communications which took place on the part of Prideaux to Thomas Langley in the year 1821. It certainly is very unsatisfactory to come to anything like a conclusion upon such a point as that is. Suppose it is imputed to him that he said all that he admitted that he did say in 1830, (and that is the utmost that he did say) that the plaintiff had no right. Now then, after having asserted that the plaintiff had no right, he goes to advise Mr. George Dike Fisher to levy a fine. Now, notwithstanding what is said about the exceeding clearness of this settlement, might it not be perfectly honest and consistent with the duty of any man who was consulting with his friends, even to say, I do not think there is the least right here; nevertheless, he says, there is some colour of it; there may be litigation about it; I would recommend you to cut this short, and, accordingly, he levies a fine. Now, if the first sort of proposition could be maintained, that a fine ought to be set aside or modified, because of fraud, when levied by any person who had good reason to believe there was an adverse claim, it would extend to a great many more fines than this: I do not know what would be the result of it. What I certainly was very anxious to find out in this case was, whether the situation of Mr. Fisher was such, that he, receiving advice, which we may suppose for the moment, at least, was communicated to him by Mr. Prideaux, could not, without fraud, levy that fine. levy that fine. I certainly do not see that a man in possession of his estate, who is advised by anybody that he is entitled to it justly, but that there may be questions raised as to it, which might be troublesome, why he might not levy a fine, why it would be fraudulent, and why this Court should set it aside; and when you add to that, the total absence of proof of anything that

passed between Prideaux and George Dike Fisher, it is made much more difficult, unless you can make it out in some way that there was something in the mind of Mr. Fisher, which made it his duty to know a great deal more than is known by persons generally as to the title to the estates which they hold. Then there comes the question, whether there was any duty which Fisher owed to the plaintiff of such a nature that the existence of that duty in him would make it incumbent on this Court to impute to him all that knowledge, which, undoubtedly, is imputed to a solicitor who takes upon himself to advise a client, and then desires to make himself master of an estate, which, by his own ignorance, or want of knowledge, he has prevented his client from getting into the course that was intended. Now, then, with regard to the situation of Mr. Fisher, I have already mentioned what it was here all fiduciary duties, unless there is a fiduciary duty annexed to the possession of the title-deeds, were terminable with the life of Mary Langley. He had been a trustee to preserve contingent remainders; he had been a covenantee for her benefit: she survived her husband several years, and there is not only no allegation that anything remained to be done on that covenant, but the covenant is not even mentioned in the bill. Certainly I cannot imagine that that would have been omitted, if there had been any ground of that sort for the plaintiff to proceed upon. The possession of the deeds, no doubt, is most material; it might, as has been justly stated, have been impossible for the plaintiff to establish his right at law without the possession of those deeds; but after all, what was the duty he had in respect of those deeds?-was it anything more than a duty safely to keep them for the purpose of being delivered to the plaintiff? There is no case that has been cited which comes near the present in the extent to which it would carry that imputation of knowledge which is wanted here, for the purpose of placing Mr. George Dike Fisher and Mr. Prideaux, together, in such circumstances as that Mr. George Dike Fisher could not have levied the fine without the fraudulent intent of taking the estate away from the parties whom he knew at that time to be entitled to it. I certainly do not

know of any case which has proceeded to that length. Now these are the grounds, I apprehend, upon which it is said that there is a constructive fraud. The necessary connexion between these parties is such, that Mr. Prideaux must have told to Mr. Fisher that which it is not proved he did tell, or that Mr. Fisher must have had imposed upon him a duty, from the undertaking to perform which the Court will impute to him such a degree and such an extent of knowledge upon this subject that he could not do that which is a common mode of effecting an assurance, without the fraud, which would induce this Court to set it aside. I confess that I have looked to this case with a great deal of anxiety. I have attended to the case with some sympathy for the position of a plaintiff, who is advised, as no doubt he is, that he had a clear right, if it had been prosecuted in due time, and who finds himself defeated, whether defrauded or not, finds himself defeated by the existence of a fine, which he would have it supposed he neglected to defeat, by or in consequence of a false representation, which was made to him by Mr. Prideaux. I have already said all that occurs to me about that communication. The case is,I dare say, not by any fault of the plaintiff in that respect, but it is unavoidably brought forward without evidence, which is necessary to support the allegations in the bill. I think, that, in a case of this kind where fraud is so generally alleged, the case ought to have been made out at the hearing; and I think that it is not made out. It therefore appears to me that this bill must be dismissed; and it must be dismissed, of course, as against the mortgagees as well as the other defendants; and I think that it must be dismissed with costs, for this reason, that the case is brought forward by way of allegation of personal fraud throughout, which fails. Now if it fails, not because the truth was not as it is alleged, but through a defect of proof, the case is very unfortunate; but it is not for that reason that I can avoid the ordinary and necessary rule as to costs in such cases.

M.R. 1844. July 3.

L.C.

1845.

Nov. 13; Dec. 20.

MAN v. RICKETTS.

Bankrupt Assignee Substitution of new Assignee as Plaintiff.

Where the creditors' assignee and the official assignee of a bankrupt filed a bill as co-plaintiffs, and the latter died before the decree, and the former died after it,—Held, that the name of the new official assignee might be substituted as plaintiff, by motion, without the bill being amended, or a supplemental bill being filed; and that he could carry on the suit without a creditors' assignee.

The plaintiffs in this suit were James Man and George Lackington; the former being the creditors' assignee, and the latter being the official assignee of a bankrupt. Man died in 1842, and the decree was made in March 1844. Before it had been entered Lackington died, and in April 1844 William Turquand was appointed official assignee in the place of Lackington, but no new creditors' assignee had been appointed. A motion was now made that the name of W. Turquand might be thenceforth substituted in the place of Man and Lackington, or of Lackington, in all further proceedings in the suit, in the same manner as if W. Turquand had been originally a party thereto (1).

Mr. Hallett appeared in support of the motion;

and

Mr. Kent opposed it.

The MASTER OF THE ROLLS made an order that the name of Turquand should be sub

(1) By the 6 Geo. 4. c. 16. s. 67. it is enacted, "That whenever an assignee shall die, or a new assignee or assignees shall be chosen as aforesaid, no action at law or suit in equity shall be thereby abated, but the court in which any action or suit is depending, may, upon the suggestion of such death or removal, and new choice, allow the name of the surviving or new assignee or assignees to be substituted in the place of the former, and such action or suit shall be prosecuted in the name or names of the said surviving or new assignee or assignees in the same manner as if he or they had originally commenced the same."

stituted in the place of Lackington as a plaintiff in the suit; and that the suit should be prosecuted in the same manner as if Lackington had been originally a plaintiff therein.

A motion was now made before the Lord Chancellor, that this order of the Master of the Rolls might be discharged.

Mr. Wakefield, in support of the motion, contended that the Bankrupt Act of 6 Geo. 4. c. 16. did not authorize the Court to substitute a new official assignee for a former assignee, inasmuch as official assignees were only created by a subsequent act, 1 & 2 Will. 4. c. 56, and that the substitution could only be effected either by amendment or by a supplemental bill; that the official assignee and the creditors' assignees were appointed at different times and in different ways, and that they could not be joint tenants of the bankrupt's estate, and that consequently the official assignee was not competent to continue the suit as sole plaintiff, but that a creditors' assignee must be joined with him.

Mr. Hallett, contrà, contended that it was not necessary either to file a supplemental bill or to amend the original bill; and that upon the death of the creditors' assignee, all his interest survived to the official assignee, who was, therefore, competent to carry on the suit.

Bainbrigge v. Blair, You. 386;
Mendham v. Robinson, 1 Myl. & K.217;

s. c. 2 Law J. Rep. (N.s.) Chanc. 56; And the cases of Fort v. Weston, and Bourne v. La Marche, before the Vice Chancellor, and Nouaille v. Flight, before the Master of the Rolls, in which similar orders had been made, were referred to.

Mr. Wakefield replied.

Dec. 20. The LORD CHANCELLOR.This was an application to discharge an order made by the Master of the Rolls. The material facts were these:-The suit was instituted by Man, the creditors' assignee, and Lackington, the official assignee, to procure the sale of an estate. Man died, and the suit was afterwards prosecuted to a hearing by Lackington alone, and a decree obtained. Lackington died soon afterwards, and Turquand was appointed official assignee in his place. He procured the decree to be drawn up and passed. Application was

made to the Master of the Rolls for an order that Turquand's name might be substituted for that of Lackington in the suit, and an order was made accordingly. It was contended by Mr. Wakefield that the learned Judge had no authority to make such an order.

Much of his argument turned upon the assumption that the official assignee and the creditors' assignee were not joint tenants of the estate, their titles accruing at different periods and from different persons. There is no foundation for such an opinion. By the 25th section of 1 & 2 Will. 4. c. 56. deeds of assignment are dispensed with, and the estate vests in the same manner as if such deed or deeds had been actually executed. But if this provision had not been made, the Commissioners would have assigned the estate to the official assignee, and after the choice of the creditors' assignee, a second assignment would have been made to both of them jointly. It follows, therefore, as the estate vests as it would have done if there had been the usual assignment, that they have a joint title; and this is in conformity with the 22nd section of the act, in which it is enacted, "That the official assignee shall be an assignee of the bankrupt's estate and effects, together with the assignee chosen by the creditors." Upon the death of Man, therefore, the whole estate became vested in Lackington, the survivor. Upon his death, a new official assignee, Turquand, was appointed: but, by the 67th section of 6 Geo. 4. c. 16, if an assignee die the suit shall not abate, but the Court may order the name of the new assignee to be substituted for that of the former assignee, and the suit shall proceed as if it had been originally commenced in his name. This clause is, by the 16th section of 1 & 2 Will. 4. c. 56, incorporated into that act, and authorizes the order made by the Master of the Rolls. It was Isaid that the 67th section of 6 Geo. 4. c. 16. applies only to assignees that are chosen, and that it is confined therefore to creditors' assignees, and does not extend to official assignees, who, it is said, are appointed and not chosen. But the Court would not, I conceive, be justified in putting this narrow interpretation upon the act after its incorporation into the 1 & 2 Will. 4. c. 56, which creates this new class of assignees, and thereby preventing its application to the case of the official assignees, who come distinctly within

Production of Documents-Corporation.

In a cross bill, filed against a corporation which claimed an exclusive right of metage of grain and other articles, it was alleged that the right was of modern origin, and that the fees for metage had varied. The corporation admitted metage books and other documents to be in their possession, which were evidence of their title, and the officers of the corporation denied, as to their belief only, that the books and documents would prove the allegations in the cross bill:Held, that this was not sufficient to protect them, but that the corporation were bound to produce the books and documents.

The plaintiffs were brewers in the parish of St. Martin-in-the-Fields, Westminster. The corporation of London filed a bill against them in 1839, in which they claimed to have had from time immemorial the right of measuring all grain of every kind, and other things, coming upon the Thames to the port of London from the bridge of Staines to Yendall, otherwise Yantlet; that this custom of measuring had been from time immemorial performed by corn-meters appointed by the corporation, and they claimed a certain ancient fee of d. for every quarter, Winchester measure, of grain measured by them, and also a fee of 8d. for every last of light grain, and 10d. for every last of heavy grain. grain. The bill then alleged that Messrs. Combe & Co. had landed, at their wharf in the Savoy, great quantities of malt, for which they had not paid the fees to the city; and the bill prayed an account of these quantities, and of the fees due to the corporation.

Messrs. Combe & Co. put in their answer to the bill, and also filed the present bill, which was a cross bill, for the discovery of