1839.-Pritchard v. Foulkes. 1839 July 6, 19. PRITCHARD v. FOULKES. A petition for a commission to examine witnesses, and the order thereon, obtained by consent, were intituled in an original and revived suit, but the interrogatories were intituled in the original cause only: Held, that the interrogatories were wrongly intituled, and the depositions were suppressed. Depositions suppressed on the ground of interrogatories being intituled in one cause, in which a deceased defendant and her representatives were all stated to be defendants together. THIS was a motion to suppress the depositions of a witness examined in the cause: one of the grounds was that the interrogatories on which the witness was examined were wrongly intituled. The case was that Elizabeth Eddowes, one of the defendants to the original bill, having died after her answer had been put in, a bill of revivor against her representatives was filed, and an order to revive was obtained and served properly on the defendants to the bill of revivor, and also on the surviving defendants. [*134] *Some time afterwards a petition for a commission to examine witnesses was presented: this petition was intituled in the original and revived suit; an order for a commission intituled in the same manner was granted by consent, and the commission issued under that order. At the execution of the commission, interrogatories were produced on the behalf of one of the surviving defendants in the original cause: those interrogatories were intituled in the original cause only. A witness was examined upon them, and the motion sought to suppress those depositions, and also other depositions of the same witness taken in the examiner's office upon interrogatories intituled in the same manner. The objection taken was, that the interrogatories ought to have been intituled in the original and revived suit in the same manner as the order under which the commission issued. It was answered, that although one defendant was dead, and an abatement as to her had occurred, there was no abatement as to the surviving defendants, who were the only parties to the original cause, who were in contest with the plaintiffs in that cause only, and being entire strangers to the abatement and revivor, were neither bound nor at liberty to take any notice of the proceedings in respect thereof. Mr. Pemberton and Mr. James Russell, in support of the motion. [*135] *Curre v. Bowyer, (a) was cited; and see Cumpbell v. Dickens (b) and Perry v. Silvester.(c) July 19. THE MASTER OF THE ROLLS, after stating that the order to re (a) 3 Swan. 357. (b) 3 Younge & C. 720. (c) Jac 83. 1839.-Pritchard v. Foulkes. vive had been unnecessarily served on the surviving defendants to the original bill, with respect to whom there was no abatement, proceeded. I have consulted the officers of the court on the subject; but in consequence of some differences of opinion they have been unable to afford me all the assistance I desired. It is agreed that an abatement by the death of one defendant does not affect the surviving defendants, who are not proper parties to a bill of revivor and who are only concerned with the plaintiff's proceedings on the abatement, to the extent in which the court, upon a special case, may think that the circumstances attending the same may excuse some delay, and consequently affect the right of the surviving defendants to the original canse to dismiss the bill for want of prosecution. It is agreed also, that if in the present case there had been no order for a commission, and the witness had been examined before the examiner upon interrogatories intituled as these were, the depositions would have been regularly taken; and there are some who think that, notwithstanding the order for a commission, in which all parties joined, and the double title of that order, the depositions taken upon interrogatories intituled in the original cause only, are regular; but upon this point, (the only one which is material on the present oc- [*136] casion,) there is very great difference of opinion, and no authority bearing upon the question has been found; I am therefore under the necessity of being guided by that which appears to me to be the most reasonable and regular course and I think that the defendants having consented to the order of the 19th of July, 1838, which was intituled in the original, cause and revived suit, and the commission in which all parties joined having issued under that order, all the proceedings which afterwards took place ought to have been intituled in the same manner, and consequently that the interrogatories were wrongly intituled in the original cause only, and that the depositions ought to be suppressed. There was a subsequent motion to suppress other depositions, on the ground of the interrogatories being intituled in one cause, in which the deceased defendant and her representatives were all stated to be defendants together. THE MASTER OF THE ROLLS said, that it appeared to him that this title was clearly irregular, and that the depositions taken on these interrogatories must be suppressed.[1] [1] Affirmed, 7th Nov. 1840. It is not irregular to intitule a commission to examine witnesses, or the cominission or the return thereof, in a short form, as a suit in which A. and others are plaintiffs." and 66 B and others, defendants." Lincoln v. Wright, 4 Beav. 166. A supplemental bill was filed in which a deceased person was named as co-plaintiff, and as next friend of infant plaintiffs, and in the title of the plaintiff's interrogatories for the examination of witnesses, his name was mentioned as being still a party; it was held that a defendant who had acquiesced and intituled his interrogatories in a similar manner, could not, after publication, move to suppress the depositions. Ibid. In the case just cited, the Master of the Rolls, in regard to his decision in the case in the text, observed, "that 1839.-Peck v. Cardwell. [*137] 1839: April 20, 22, 23, 30. *PECK V. CARDWELL. Four persons purchased some land and agreed that it should be laid out in streets, and sold in lots according to a specified plan. All the parties died; and there being no equitable ground for putting an end to the agreement: Held, that the representatives of one of the parties could not maintain a suit for a partition against the representatives of the others. A., B., C. and D. purchased land on a joint speculation; and they agreed, in case either of them should sell his share, to give to the others the option of buying. A. and B. paid the whole purchase money, and C. and D. mortgaged their shares to A. and B. to secure their proportions. D. died, and made A., C. and W. executors and trustees, and gave them power to sell but no power to make purchases. A. and B., who alone proved the will, together with W. agreed to relinquish to C. a proportion of the estate, in consideration of C.'s releasing to them his share in the residue, subject to his mortgage debt thereon. W. died, and A. and B. afterwards completed the contract: Held, that as there was no power given to the executors and trustees of D. to purchase, or to render the testator's estate liable to a portion of C.'s mortgage, the estate of D. was not entitled to participate in the benefit of the purchase. IN 1791, John Singleton, John Hodgson, Richard Cardwell and Henry Helme, all of whom were since dead, became the purchasers of some property. there was a considerable difference of opinion among the officers of the court as to the correct mode of intituling these matters; and that in the case of Pritchard v. Foulkes he had himself been under the necessity of deciding between conflicting opinions as to the practice." A commission to examine witnesses, and the depositions taken thereunder, were intituled in an original and revived suit, but the interrogatories were intituled as in a single suit, though in a manner applicable either to the original suit, or to the suit as revived: it was held that the interrogatories were not wrongly intituled, and a motion to suppress them was refused. Jones v. Smith, 2 Yo. & Coll. C. C. 42. Knight Bruce, V. C. there said; "when the case of Pritchard v Foulkes was first cited to me, I understood that the depositions there sought to be suppressed were depositions taken on the part of the plaintiff; and had it been so, I should have considered the case clear of all difficulty. ) allude to the application in Pritchard v. Foulkes, first reported in 2 Beavan, not to that mentioned at the foot of page 136 in that volume. As that case was afterwards explained to me, and as it appears in the book, it had some difficulty. It is not necessary or material that I should on the present occasion express or intimate any opinion or doubt that I may entertain, if indeed I have formed any opinion or doubt, as to any branch of it. I apprehend that Pritchard v. Foulkes and my present decision may well stand together. The present case is thus :-Jones was and is the sole plaintiff The original defendants were Thomas Assheton Smith and the party who moves. T. A. S. having died before any witness had been examined, and before any commission had issued, and, indeed before either defendant had answered, the plaintiff filed a bill of revivor against the present defendant T. A. S., the son and personal representative of the deceased defendant, as his personal representative. Upon this bill, after the present Mr. T. A. S. had put in one answer to both bills admitting assets, the usual order of revivor appears to have been regularly made. The abatement or partial abatement was thus cured, and the cause again regularly and sufficiently constituted in point of parties This having been done, the commission regularly issued --It seems to me that, admitting the title of the commission to be correct, the title of the interrogatories is not incorrect in describing them as being in a single cause; that cause being constituted of Jones as plaintiff against T. A. Smith and Turner as the defendants. I apprehend that there are not two causes, and that the suit is one original cause which, after an abatement or a partial abatement, has been and stands revived; the plaintiff having remained throughout unchanged, the present Mr. Smith being by a proceeding merely of revivor, substituted for his deceased father whom he represents, and there having been no other alteration or addition. It is true that there are two bills. But if the case is single, why should it be held necessary to mention the plurality of bills in the title of the 1839.-Peck v. Cardwell. in the neighborhood of Liverpool, called the Hedge Hill estate, for the sum of 73501. The purchase money was advanced by Hodgson and Cardwell On the 11th of February, 1791, the property was conveyed to the purchasers, and on the 19th of March following, Helme and Singleton mortgaged their shares to Hodgson and Cardwell, to secure to them their proportions of the purchase money which had been paid for them by Hodgson and Card well. On the same day the parties executed an agreement, regulating the mode in which the land was to be laid out for building upon, and for selling the same in lots, from time to time, for their mutual benefit; and it was agreed, that if either party or his heirs should be desirous of selling his share, it should be first offered to the other parties at a price to be fixed by the vendor; and if refused by the others, then it might be sold to any other person, to be first approved of by the rest; and if such purchaser should be refused or rejected by the rest, then the share was to be valued by arbitration; and if the *other partners refused to purchase at that valuation, then the party [*138] selling was to be at liberty to dispose of his share by public auction. to the highest bidder. Singleton, by his will, appointed Cardwell and Helme and a Mr. Edward Whiteside his executors and trustees, and devised to them his one-fourth share of the property on certain trusts; he gave them power to concur with the other parties interested in the property in opening streets, in selling, conveying, or making partition of the property, and power to sell any share which might be allotted to his estate in severalty. Singleton died in 1793, his share being still subject to the mortgage to Hodgson and Cardwell. Cardwell and Helme proved his will. Edward Whiteside, who was tenant for life of Singleton's property, though he did not prove the will, seemed to have acted with Hodgson and Card well in the management of the property. Helme became desirous of retiring from the concern, and on the 6th of June, 1798, an arrangement was entered into, by which Hodgson. Cardwell and Whiteside, described as partners, agreed to relinquish to Helme one acre and a quarter of the land absolutely, on his giving up all claim whatever to the remainder of the estate subject to his mortgage debt, which, it was alleged, was considered to be the value of the share so released. Edward Whiteside, the tenant for life under the will of Singleton, died in interrogatories? That title seems to me substantially to agree with the state of the cause, and not substantially to differ from the title used in the commission. We are not now dealing with the case of an abatement by the death of a plaintiff or the marriage of a female plaintiff; especially not with a case where upon the death of a plaintiff, his interests in the subject of suit sever and vest in different persons; nor are we dealing with the case of revivor after decree. We are dealing with a most simple and common case of revivor on the death of a defendant before the hearing-before any examination of witnesses-before any commission-and before answer; to different considerations from which the other cases to which I have just alluded, [Catton v. Lord Carlisle, 5 Mad. 427. Pruen v. Lunn, 5 Russ 3,] may or may not be open. On the whole, I think it right to refuse this application. But in doing so my mind is not free from doubt, &c." 1839.-Peck v. Cardwell. July, 1798, and thereupon the plaintiffs, who were then infants, became beneficially interested in Singleton's estate. After the death of Whiteside the one acre and a quarter of the partnership land was conveyed to Helme, and onefourth of the value was carried to the separate account of the estate of Single ton, free from any charge, and at the same time Cardwell and Hodg[*139] son took to themselves Helme's "interest in the remainder of the estate. By this bill the plaintiffs insisted, that on the retirement of Helme from the partnership, the parties interested under the will of Singleton had a right to participate in the benefit of the purchase of Helme's share; they prayed for consequential accounts, and for a partition of the estate; they contended, that as the representatives of Singleton were entitled to the benefit of the option of purchasing Helme's share, and as the purchase had been made by persons, including Whiteside, who stood in the situation of partners as well as of executors and trustees, the estate of Singleton, was entitled to the benefit of the contract. Mr. Kindersley, Mr. G. Richards and Mr. Booth for the plaintiffs. THE MASTER OF THE ROLLS reserved his judgment. April 30.-THE MASTER OF THE ROLLS-In the year 1798, the piece of land which is in question in this cause was vested, in equal fourth parts, in Richard Cardwell, John Hodgson, Henry Helme and the trustees of John Singleton's will; the trustees were Richard Cardwell, Henry Helme and Edward Whiteside. The estate was held subject to the agreement of the 19th of March, 1791, the shares of Helme and the share vested in the trustees of Singleton were subject to mortgages to Cardwell and Hodgson for the amounts of their shares of the purchase money; and the will of Singleton devised his share to his trustees, on trusts which enabled them to concur with the [*140] other *persons, i. e. with themselves Cardwell and Helme, and with Hodgson, or those claiming under them, in opening streets, in selling and conveying the property, and in making partition, and selling any share which might be allotted to the estate of Singleton in severalty. It does not appear to me that these parties can be considered merely as tenants in common of land, as to portions of which some of them were entitled partly as trustees and partly for their own benefit, or that they can be considered merely as partners in a trading concern, which the survivors were carrying on for the benefit of themselves, and of the estate of the one who was dead. They were tenants in common of the land subject to particular agreements, and they were partners subject to the agreement of March, 1791, and also subject, as to Cardwell and Helme, with respect to the share of Singleton, to their duties and responsibilities as trustees and executors of Singletou's will; and morcover Cardwell and Hodgson were mortgagees entitled to demand payment of what was due to them from Helme and the estate of Singleton. |