1839.-Beavan v Waterhouse.

It is to be observed on this will, that there is a direct gift to her, for life, of all the particulars therein enumerated; it is made subject to payments some of which are annual payments, to annuities, and to insurances the particulars of which are not stated, except the one mentioned in the codicil; whatever they were, the annuities and insurances were to be paid by her, he giving to her, for her life, the rents, dividends, annual produce and [*58] profits, and the use and enjoyment of all his estate, whether real or personal, for and during the term of her natural life, subject to the payments after mentioned. I have looked at this many times, and I think, on the whole, that it is a case in which the testator has given to her the use and enjoyment of the interest and rents and produce of his estate, as it stood at the time of his death; I have, therefore, come to a conclusion on this will contrary to that which was formed by Mr. Bell on the statement made by the defendant. This appears to me to be the proper construction of the will, and the account between these parties must, therefore, be taken on that footing. Decree accordingly for the plaintiff with costs.

Affirmed by the Lord Chancellor, July 10th, 1839.[1]

1839: June 26.

BEAVAN V. WATERHOUSE.

A clerk in court, who acted both for the plaintiff and defendants, applied to the plaintiff's solicitor for the names of commissioners to take the defendants' answer: Held, that this must be considered as a step taken by him on behalf of the defendants, although it was sworn that no instructions had been given by the defendants to the clerk in court for preparing a commission, and that such application, if any, had been made by him in the character of clerk in court of the plaintiffs.

A defendant, after having appeared to an amended bill, obtained an order for the delivery out of court of his papers, to enable him to prepare his answer, and after the time for answering had expired, applied to the plaintiff for names of commissioners to join in taking his answer: Held, that he could not afterwards refer the bill for impertinence.

THIS was a motion on behalf of the plaintiff, to take off the file, on the ground of irregularity, certain exceptions for impertinence, which had been filed by the defendants to the amended bill.

"The defendants answered the original bill, and afterwards deposit. [*59] ed in court the documents admitted to be in their possession. On the 16th of April, 1839, the plaintiff, filed his amended bill, to which the defendants appeared on the following day; the time for demurring expired on

[1] Reported 4 Myl. & Cr. 289. At the conclusion of his judgment, (p. 304,) Lord Cottenham says; "There was, undoubtedly, some doubt upon the will; and if the case turned upon the construction of the will alone, I should think it a very fair case for appeal; but when I find that it did not turn upon this will only, but that the object of the appeal is also to establish the transaction between the son and his mother, I am bound to dismiss the appeal with costs."

1839.-Beavan v. Waterhouse.

the 28th of April, and on the 30th of May, the defendants obtained an order for the delivery out of court of the documents for the purpose of preparing their answer. The time for answering the amended bill expired on the 5th of June, and on the following day (the 6th of June,) the defendant's clerk in court, who also acted as the clerk in court for the plaintiff, sent a note to the plaintiff's solicitors, requesting the names of commissioners to be appointed on behalf of the plaintiff, to see the answer of the defendants to the amended bill taken. The plaintiff's solicitors replied on the 12th of June, that the plaintiff would not join in the commission, and on the same day wrote to the defendant's solicitor, stating they were anxious for the answer and requesting to be informed when it would be filed. No answer was returned; but on the 17th of June, the defendants filed exceptions to the plaintiff's amended bill for impertinence.

It was now moved on behalf of the plaintiff, that these exceptions should be taken off the file for irregularity.

An affidavit was made on behalf of the defendants, stating "that no instructions had ever been given to the clerk in court for the said defendants to prepare a commission to take their answer to the amended bill," and that" if any such note asking for commissioners' names had been given by the said clerk in court, as was stated, that such note had been given by the [*60] clerk in court *in his character of plaintiff's clerk in court, and not of defendant's clerk in court."

Mr. Pemberton and Mr. Beavan, in support of the motion:-Where a party takes any steps in the cause, he cannot afterwards refer his opponent's previous pleadings for impertinence, though he may for scandal: thus, where the defendant has obtained an order for time to answer, Ferrar v Ferrar,(a) or has submitted to answer, Anonymous,(b) he cannot refer the bill for impertinence; a party cannot refer an affidavit for impertinence after he has filed a counter affidavit in opposition; Re Burton ;(c) Keeling v. Hoskins.(d) The order therefore procured by the defendants for the delivery out of court of the papers, prevents the reference for impertinence; secondly, the note calling for commissioners' names was a submission to answer, and had a similar effect; and thirdly, since, by the new general rules, orders for time to answer are rendered unnecessary, and the defendant must demur, if at all, within twelve days, he, by allowing that period to expire, submits to answer, and has therefore no longer the right to refer the bill for impertinence. The defendants ought to have taken the step earlier; it would be a great hardship on a plaintiff to be prevented enforcing an answer after expiration of the time for answering, by means of a reference of this description obtained, as of course, by a defendant who at the time is actually in default.

(a) 1 Dickens, 173.

(b) 2 Ves. sen. 630.

(e) 1 Russ. 380.

(d) 2 Russ. 319; [320, n 1;] and see Beckford v. Skewes, 8 Sim. 206; and Jeffray v. M' Cabe, 1 Russ. & M 739.

1839.-Beavan v. Waterhouse.

Mr. Kindersley and Mr. Rogers, contra:-*Under the old practice, ["61] a party might demur at any time prior to obtaining an order for time, and until such an order was actually obtained he might refer for impertinence; the new orders do not limit the time, within which such exceptions are to be taken, and the old practice now prevails; the time for referring does not therefore expire with the time for demurring, but on an order for further time to answer being obtained by the defendants.

The application for the names of commissioners was a step taken by the clerk in court as representing the plaintiff, and cannot therefore be objected to as a step taken by the defendants so as to prevent their afterwards filing exceptions for impertinence.

The order for the delivery out of papers, was obtained before the pleadings had been laid before counsel and the alleged impertinence discovered, and it ought not to prevent the defendants filing exceptions, as there has been no delay. They cited Nedby v. Nedby, (a) where, after the time for demurring had expired, the defendant filed exceptions to the bill for impertinence, which were allowed, and seven days afterwards he demurred, the Vice-Chancellor held, that this was regular. They also cited Anonymous.(b)

THE MASTER OF THE ROLLS:-The question is, whether these exceptions ought or ought not to be taken off the file. The amended bill was filed on the 16th of April, and an appearance was entered to it on the next following day. Seven weeks are allowed by the general orders of the court for putting in an answer to an amended bill, and the time *ex- [*62] pired on the 5th of June. The defendants thought fit to employ, as clerk in court, the same person who was the clerk in court of the plaintiff, and on the 6th of June, this clerk in court writes a note to the solicitors of the plaintiff, to ask whether he would join in a commission to take the answer of the defendants. It is said, it was the clerk in court of the plaintiff who made this request, and that is to some extent true, but how came it into his mind to make this communication to the solicitors of the plaintiff? It must have been suggested to him in the course of his duty as clerk in court of the defendants. If parties think fit to employ persons in this way who have conflicting duties, they must take the consequences of it, and I must hold that the suggestion which was made by the clerk in court in one character, to himself in another, must have all the effect that is imputed to it by the plaintiff, and must be considered as made by the clerk in court of the defendants, and as a step taken on their behalf, with a view to get their answer sworn. The time for answering having expired, there being this intimation actually given, that the answer was about to be put in, and an order having also been obtained that papers might be taken out of the court to enable these defendants to prepare their answer, (which I do not consider immaterial,) I think it is made out very clearly, that there have been such pro

.

1839.--Rippon v. Norton.

ceedings as rendered it improper for them afterwards to file exceptions to the bill for impertinence; I therefore think that this motion ought to be granted, with costs.[1]

Property was settled on J. R. by his father, until he should take the benefit of the insolvent debtors' act, and then the trustees were, during his life, to apply it in such manner and to such persons, for the board, lodging and subsistence of J. R. and his family, as the trustees should think proper; and after his decease, upon trust for such persons as J. R. should appoint, and in default of appointment, in trust for his children. J. R. took the benefit of the insolvent debtors' act: He bad three children, but his wife was dead. Held, that his children, who were all infants, became entitled to three-fourths and the assignees to one-fourth of the life interest of J. R.

DR. RIPPON being possessed of the copyright of printed and manuscript books and of certain copies thereof on hand, by deed dated in January, 1832, in consideration of the natural love and affection which he had for his son John Rippon, assigned the same to trustees, upon trust, during the natural life of Dr. Rippon, to permit and suffer him and his assigns to manage and conduct the printing, publishing and disposing of the said printed and manuscript books and publications and works and the copies thereof, as fully and effectually as if the assignment had not been made; and also to have, hold, receive, take, possess and enjoy all the profit, benefit and advantage arisen and produced and to arise and be produced therefrom, and the copies thereof and any new editions of the same, for his own absolute use and benefit; and after his decease, upon trust that the trustees, during the natural life of John Rippon the younger, should permit and suffer him to manage and conduct the printing, publishing and disposing of the said printed and manuscript books, publications and works and the copies thereof, and should permit and suffer John Rippon the younger to have, hold, receive, take and enjoy all the profit, benefit and advantage arisen and produced and to arise therefrom, for his and their own use and benefit during his natural life, in the mean time and until he should be declared a bankrupt, or seek relief under or take the benefit of any act made and then in force or thereafter to be mada for the relief of insolvent debtors, or enter into and execute any deed of composition with his creditors, or bargain, sell, mortgage or otherwise dispose of, by way of antici

pation, the profits or produce of all or any of the said printed and [*64] manuscripts books, publications and works, or the copies thereof re

spectively, to any person or persons whomsoever; and from and after the said John Rippon the younger should become bankrupt or insolvent, or execute any deed of composition, or should bargain, sell, mortgage or other

[1] When right to except for impertinence is lost by taking further proceedings, see further Holmes v. The Corporation of Arundel, 3 Beav. 303.

1839.-Rippon v. Norton.

wise dispose of, by way of anticipation, the profits or produce of all or any of the said printed and manuscript books, publications, or the copies thereof respectively, then and in such case the said trustees or the survivor of them or the executors or administrators of such survivor should thenceforth, during the then remainder of his natural life, pay and apply such part of the profits and produce of the said printed and manuscript books, publications and works, copies and premises as would have been payable or have belonged to him during his life, in such manner and to such persons, for the board, lodging and subsistence of himself and his family, as the said trustees or trustee for the time being should think proper; and from and after his decease, then upon trust for such persons as J. Rippon the younger should appoint, and in default and until such appointment in trust for his children.

In the month of January, 1834, John Rippon the younger took the benefit of the insolvent debtors' act, and executed the usual assignment of his estate and effects to his assignees.

Dr. Rippon the settlor, died in 1836, and at his death he had in his possession a number of copies of the works, some of which had been printed before the execution of the deed and some afterwards.

The trustees named in the deed refused to act, and the deed contained no power of appointing new trustees.

This bill was filed by the three children of John Rippon the younger, who were all infants, praying the establishment of the deed, and [*65] that the rights of the parties under it might be ascertained, and that new trustees of it might be appointed.

The wife of John Rippon the younger, and the mother of his children, was living at the institution of the suit, but died before the hearing.

The questions in the cause were, first, as to the interests taken by the plaintiffs and the assignees of John Rippon the younger in the settled property; and secondly, whether the copies of the works which had been printed after the date of the deed, in the lifetime of Dr. Rippon, were subject to the trusts. Mr. Tinney and Mr. Craig, for the plaintiffs, the three infant children of John Rippon the younger, contended that they and the assignees of their father were entitled to the property in equal fourth shares, as tenants in common; and that, consequently, the assignees of John Rippon the younger were entitled to one-fourth of the profits, and the three children to the remainder. Mr. Pemberton and Mr. James Russell, for John Rippon the younger. Mr. Loftus Wigram, for the assignees of John Rippon the younger contended that it was clear that the deed was a mere shift and contrivance, to give John Rippon the younger such a life estate as would not pass to his assignees in case of his bankruptcy or insolvency; that it was therefore void, as being against the policy of the law, and a fraud on the insolvent and bankrupt acts; that the discretion intended to be vested in the trustees had ceased on the insolvency of John Rippon the younger; Piercy v. Roberts,(a) Snowdon v. (a) 1 Myl. & K. 4. 6

VOL. II.