1840.-Sidmouth v. Sidmouth. he intended the son to have neither any present interest in the stock, nor any power over it, nor any future benefit of any kind from it. It seems to me to be, if not a necessary, yet an extremely probable inference from the circumstances, that the father intended to make the son, to the extent of these transfers, secure for the future; but at the same time intended to make the son, for the present, dependent upon himself for his support; that although he adopted a mode of proceeding which gave power to the son to revoke the letters of attorney and sell the stock, yet he relied, and reasonably, upon his own parental influence, upon the habitual deference of his son, and upon the conformity to his own will which he might expect in a son who had so much to expect from him, that no improper advantage would be taken of the power which the son obtained by the transfer; and so, in fact, they went on the son was maintained by the father, who continued to receive the dividends. The evidence of Mr. Chisholme, so far as it shows that at a subsequent period Lord Stowell referred to this stock as a provision to that extent made for Mr. Scott, is material; it was quite consistent with its being an advancement that Lord Stowell should take it into consideration to determine what further provision he should make for Mr. Scott by his will. The other parts of the evidence of Mr. Chisholme I do not consider to be important: Lord Stowell does not appear at the time to have accurately recollected the particulars of the stock which he had transferred, and Mr. Chisholme may not have succeeded in accurately collecting the very words which Lord [*459] Stowell used; but I do not find any "thing in any part of the evidence, which is inconsistent with the material part, by which it is shown that Lord Stowell himself considered that by the transfers he had made a provision for his son. The evidence of Mr. Balley, as to the conversations between him and Lord Stowell, I consider to be wholly immaterial. With respect to Mr. Scott, Mr. Balley says that he was in want of money, and did not know that he had this stock to resort to, and when told of it, thought he could not use it in his father's lifetime. On the other hand, it is said, that Mr. Scott could not have wanted money, because he had always a balance in the hands of his bankers. I do not think it important whether he was in want of money or not; under all the circumstances, a balance at his bankers, who were also the bankers of his father, does not appear to prove that he was not. But the conversations with Mr. Balley prove nothing as to the rights of the parties, and if Mr. Balley gave the information about the stock to Mr. Scott in the year 1834, Mr. Scott was concurring in an arrangement recommended by the late Lord Eldon and by Lord Sidmouth, which was much more beneficial to himself. On the whole, I think there is not, in this case, any thing to rebut the ordinary presumption, which arises from an investment by a father in the name of his son; and I think that the several sums of stock which are in question, 1840.-Guy v. Guy. form parts of the estate of William Scott, and belong to the plaintiff as his representative.[1] *Between MARIA GUY and MARY GUY, Infants, by WILLIAM [*460] CARNS, their next Friend, Plaintiffs; and AMELIA GUY and Others, Defendants. 1840 April 23, 30. Bill filed by two infants; one attained twenty-one before decree; her name as co-plaintiff struck out on her application, with the costs of the application. Suit improperly instituted on behalf of an infant, dismissed with costs, on motion, upon the application of the infant by A. B., a person not then a party to the suit, "as her next friend, for the purpose of the application." THIS suit was instituted in the name of the infant plaintiffs by their next friend, a person unconnected with their family; on the 6th of March, 1840, Maria Guy attained her age of twenty-one years. It was now moved on her behalf that the above named William Carns might be restrained from taking any further proceedings in this suit in her name, and that her name might be struck out of this suit as a plaintiff, and that William Carns might pay the costs of this application; and also for a reference to the Master, to inquire if it was for the benefit of the infant plaintiff, Mary Guy, that this suit should be prosecuted. No decree had been made. It was alleged that the suit had been improperly instituted, and the circumstances being such as to induce the court to come to that conclusion, it is unnecessary further to state them. Mr. Pemberton and Mr. W. C. L. Keene, in support of the motion, contended that the plaintiff, having attained twenty-one, had a right to have her name struck out as co-plaintiff, Acres v. Little ;(a) and the suit not appearing to be for the benefit of the other infant, that *it ought to [*461] be dismissed; Fox v. Suwerkrop, (b) and Sale v. Sale.(c) (a) 7 Simons, 138. (b) 1 Beavan, 583. (c) Ib. 586. [1] In Scawin v. Scawin, 1 Yo. & Coll. C. C. 65, Knight Bruce, V. C. says; "It is settled that a purchase by a father in the name of his son, is prima facie an advancement of the son. The presumption is so, but of course this presumption may be rebutted. The father may certainly, even in cases where the doctrine of advancement is held to take place, receive the title deeds and the dividends; but although those circumstances may exist in such cases, yet they are circumstances in favor of the father, especially where the son is adult." In that case there was a subscription by the father of one hundred shares in a joint stock bank in his own name, and fifty shares in the name of his son; and he paid the deposits and calls, not only on the one hundred, but on the fifty shares it was held, under the circumstances, that there was not in this case an advancement for the son. One circumstance was, that the father, who had received the certificates for both classes of shares, also received the dividends; as to which the Vice-Chancellor said: "Upon the principle laid down in Merless v. Franklin, (1 Swanst. 13,) the receipt of dividends by the father is a circumstance in his favor, though not conclusive." See further Hill v. Gomme, 1 Beav. 554. Prankerd v. Prankerd, 1 Sim. & Stu. 1. Skeats v. Skeats, 2 Yo. & Coll. C. C. 9. 1840.-Guy v. Guy. Mr. Bethell and Mr. Puller, contra, argued that the proper mode of withdrawing from the suit was by giving notice to the next friend and the clerk in court, and not by a motion; and that, at all events, the motion could only be granted on terms; as the suit would otherwise be rendered imperfect. That no reference could be directed as to the other plaintiff, as no application was now made on her behalf. As to dismissing the bill, they observed that it was not asked by the notice of motion. Mr. Pemberton, in reply. THE MASTER OF THE ROLLS considered that the infant, having attained twenty-one, had a right to withdraw from the suit, and to have the costs of the application.[1] As to the other part of the case, he said that he could make no order on the present motion, but that he would leave it open to the parties to make such application, on behalf of the infant plaintiff, as they might be advised. April 30.-A motion was now made "by the infant plaintiff Mary Guy, by the late plaintiff Maria Guy, her sister, and next friend for the purpose of this application, that the bill might be dismissed with costs to be paid by William Carns, the next friend." Mr. Pemberton and Mr. W. C. L. Keene in support of the motion, cited Sale v. Sale(a) and Fox v. Suwerkrop.(b) [*462] *Mr. Bethell objected that the application ought not to have been made by Maria Guy as next friend, she being now no party to the suit, and such applications having always heretofore been made through a defendant; and secondly, that there ought to be a reference to the Master to inquire as to the propriety of the suit. THE MASTER OF THE ROLLS, upon the evidence before him, being of opinion that the suit was improper, followed the authorities cited, and granted the motion.[2] (a) 1 Beavan, 586. (b) 1 Beavan, 583. [1] Vide 2 Keen, 248, n. 1. Macpherson on Infants, 364. The infant's coming of age is no abatement of the suit, but he may elect whether he will proceed with it or not. If he goes on with the cause, all subsequent proceedings may be carried on in his own name, and the bill need not be amended or altered. Macpherson, loc. cit. But where a suit had been instituted for the benefit and protection of two infants, and the court was of opinion that the object of the suit could not be effected till they both attained twenty-one, it dismissed with costs a petition by the elder on reaching that age, praying that the bill might be dismissed against her, or that she might be indemnified against the future costs of the suit. Ibid, citing Smith v. Lyster, 19 L. J, 344. [2] Vide 1 Beav. 585, n. 1. A. B., an attorney, representing himself to be authorized by the owners, entered into an agreement on their behalf, to sell a house to the plaintiff, and he received a deposit. The plaintiff filed a bill against the owners and A. B., praying a specific performance, and in the alternative, that if the agreement could not be enforced against the owners, then that A. B. might repay the deposit and the costs incurred by the plaintiff, and of the suit. It appeared at the hearing that A. B. had no authority to sell: Held, that the remedy of the plaintiff against A. B. being altogether at law, could not be had in this suit, and the bill was dismissed with costs. STEPHEN JONES and Margaret Doggerell, being owners of a house and premises at Bath, Mr. Chitty, an attorney, entered into an agreement in writing with the plaintiff, whereby, representing himself" as the lawfully authorized agent of them the said Stephen Jones and Margaret Doggerell," he agreed on their behalf for the sale to the plaintiff of the property in question. At the time of the execution of the agreement the plaintiff paid to Chitty a deposit of 201. The plaintiff filed a bill against Stephen Jones and Margaret Doggerell for the specific performance of the agreement; and Margaret Doggerell, by her answer, stated, as the fact was, that she had not authorized *Chitty [*463] to sell the property, and (as was also the fact) that Jones at and previous to the time of the alleged sale, was a lunatic and incompetent to give such authority. The plaintiff thereupon amended his bill by making Chitty a party, and adding an alternative prayer, that in case it should appear that the agreement could not be enforced, by reason of the said Stephen Jones being a lunatic, or otherwise by reason of want of authority of Chitty to sign or enter into the same, then that the same might be cancelled; and in that case that Chitty might be decreed to pay and reimburse to the plaintiff the deposit paid by him. as aforesaid, and the moneys expended by him in buildings on the premises, and the costs and expenses incurred by him in investigating the title to the premises, and endeavoring to enforce the performance of the agreement, and otherwise in relation thereto, and the costs of this suit. The plaintiff had incurred some expenses in repairs and improvement of the premises; and also in the investigation of the title, an abstract of which had been furnished by Chitty. Chitty, before the institution of the suit, had offered as follows:-"The best plan will be to repay your client his deposit and expenses, and wait a little while till the family are in a situation to satisfy the contract or rescind the contract altogether." The want of authority and lunacy of Jones were proved. The cause now came on for hearing, when Mr. Girdlestone and Mr. Hetherington, for the plaintiff, contended, that if the contract could not be *enforced, then that such a fraud had [*464] 1839.-Sainsbury v. Jones. been committed by the defendant Chitty, an officer of the court, as to render him personally liable to what was prayed against him; that the court always entertained jurisdiction in cases of fraud and misrepresentation, and that the authorities warranted the granting the relief here asked, in respect of the deposit and costs, without putting the parties to their action at law. Mr. Tinney and Mr. Lovat, for Mrs. Doggerell, argued that no authority to sell had been given by her. Mr. Cooper, for Chitty, contended that, although he had acted imprudently and under a wrong impression, he had not acted fraudulently. That the plaintiff was aware, when he filed his bill, of the impossibility of obtaining a decree, and was wrong both in the institution of the suit, and in making Chitty a party by amendment; Nicloson v. Wordsworth.(a) And as to the personal relief sought against Chitty, that, whatever might have been the rule formerly, it had been now completely settled, that this court would not give relief by way of damages, which was the province of a court of law; and that if the plaintiff had any claim for damages against Chitty for the misrepresentation, he ought to have proceeded at law: Denton v. Stewart,(b) Greenaway v. Adams,(c) Todd v. Gee,(d) and that this ob jection applied equally to the deposit: Williams v. Edwards.(e) [*465] *The following cases were cited on the hearing here and on the appeal: Sowerby v. Warder, (g) Arnot v. Biscoe,(h) Evans v. Bicknell,(i) Burrowes v. Lock;(k) Parrot v. Wells,(l) Bennet v. Vade,(m) Bowles v. Stewart,(n) Bulkeley v. Dunbar,(0) Nelthorpe v. Pennyman,(p) Clifford v. Brooke, (q) Johnson v. Ogilby.(r) THE MASTER OF THE ROLLS :-(After stating that no decree for specific performance could be made, and that the bill must be dismissed with costs as against Jones and Doggerell,) said, the question which remains is, the recovery from Chitty of the deposit, and damages. The question is, whether where a party, having no sufficient authority, enters into an agreement, the disappointed purchaser can come here for the recovery of damages which he has been put to. No authority was produced, and I believe that none exists, for such an interposition by this court. Judges have always in modern times thought, that this was not the court for the recovery of damages, and that the proper mode of obtaining relief was by an action at law; and it is reasonable that it should be so. It is painful to be compelled to refuse assistance to the plaintiff, who has sustained damages; but it appears to me that he is not entitled in this court to the relief which he asks against Chitty, and as to (q) 13 Ves. 131; Sugden's V. & P. vol. i. 45; and cases in note (y). (c) 12 Ves. 395. (k) 10 Ves 470. (r) 3 P. W. 277. |