1851.-Macintyre v. Connell. which was that, as Connell was one of the debtors, he was not at liberty to make the objection. I think, however, that what Mr. Stuart said is quite correct; namely, that Connell and every other person who is interested in the account, is at liberty to make the objection; because he, as well as they, has a right to have the account taken so that it may bind all parties, and conclude, forever, all matters arising out of it. 1 The only other point that remains to be considered, is Mr. Bethell's second answer to the objection; which was that the bill contained a charge for the purpose of discovering who the persons alleged to be necessary parties, are. I think that, if the bill had alleged that the plaintiffs did not know who those [*257] persons were, the demurrer *would not have held; but it makes no such suggestion: and, therefore, the discovery is sought not to enable the plaintiffs to supply the defect of parties, but merely as ancillary to the relief: and the rule is that if a plaintiff cannot have the relief, he cannot have the discovery.[1] It appears to me that none of the answers meet the objection, and, consequently, that, although the grounds of demurrer on the record are overruled, the ground alleged ore tenus, must be allowed. [1] The principle, that if a bill be brought for a discovery and relief, and the discovery is sought for the purpose of the relief, if a demurrer or plea will hold to the relief prayed, the plaintiff cannot have a discovery, was adopted in a case in the Supreme Court of Errors of the State of Connecticut; and it was upon the ground that the discovery was auxiliary and incidental to the relief; and if the relief was unattainable, the discovery could answer no imaginable purpose. Middletown Bank v. Russ, 3 Conn. R. page 135. The same principle was adopted in the State of New York: see 2 Barbour's Ch. Pr., page 104. Demurrer.-Costs.-Amendment. The demurrer on the record having been allowed, and a demurrer ore tenus, for want of parties, having been overruled, the court ordered the defendants to pay the 1851.-Macintyre v. Connell. costs of the former, but made no order as to the costs of the latter; and gave the plaintiff leave to amend either by adding parties, or striking out the passages which made the now parties necessary. pronounced, some discussion The question was whether no side, or whether the plaintiffs After the judgment had been took place with regard to costs. costs were to be given on either were to be allowed the costs of the demurrer on the record. Mr. Bethell referred to the Attorney-General v. Brown,(a) and Mortimer v. Fraser, (b) and asked for leave to amend the bill by either adding parties to it, or striking out of it the passages which made the adding of parties necessary. Mr. Stuart referred to Newton v. Lord Egmont.(c) The Vice-Chancellor.-I will consider this question, and give my opinion on it to-morrow morning. *5th March.-THE VICE-CHANCELLOR :-My first im- [*258] pression was that, in a case like the present, where the causes of the demurrer stated on the record, are disallowed, but the cause alleged ore tenus is allowed, the practice was not to give costs o either party; and I still think that that is the more reasonable Course of proceeding. But there is an order of Lord Clarendon's, made just after the Restoration, in the following words:—“ If any case of demurrer shall arise and be insisted upon at the debate of the demurrer more than is particularly alleged, yet the defendant shall pay the ordinary costs of overruling a demurrer, which is hereby ordered to be five marks, if those causes which are particularly alleged, be disallowed; though the bill, in respect of the particulars so newly alleged, shall be dismissed by the court."(d) And it appears from the Attorney-General v. Brown and Mortimer v. Fraser, that the practice has been according to (a) 1 Swanst. 263; see 288. (b) 2 Myl. & Cr. 173; and 14 Eng. Ch. R. part 1, 174, Am. Ed. 1851.-Smith v. Corles. that order; and, therefore, I shall order the defendants to pay the costs of the demurrer on the record, as it is called; but make no order as to the costs of the demurrer ore tenus: and I shall give the plaintiffs leave to amend their bill, not generally, but by either adding parties, or making such alterations in it as may cure the defect of parties. [*259] *SMITH v. CORLES.(a) Claim.-New Orders.-Practice. Motion for an order under the 31st General Order of May, 1845, against a defendant to a claim, who had absconded, refused. THIS was a claim to foreclose a mortgage made by a defendant who had absconded. Mr. Roberts, for the plaintiff, moved for an order against the defendant, under the 31st General Order of May, 1845.(b) The VICE-CHANCELLOR refused the motion, saying that the 13th General Order of April, 1850, did not authorize the court to make a decree against a defendant for whom an appearance had been entered, and, therefore, an appearance entered for the defendant under the 31st Order of May, 1845, would be inoperative. (a) Ex relatione Mr. Roberts. (b) See Bear. Ord. 295. 1851. In re The East Lincolnshire Railway Act. *IN THE MATTER OF CROSS'S ESTATE AND OF THE [*260] LANDS CLAUSES CONSOLIDATION ACT 1845, AND OF THE EAST LINCOLNSHIRE RAILWAY ACT. EX PARTE FLAMANK AND OTHERS. Lands Clauses Consolidation Act.-Reinvestment of Compensation Money-Conversion. 1851 10th and 20th January and 22d February.' Money paid into court by a railway company, for land taken under the Lands Clauses Act, from a person who was in a state of mental imbecility, and who continued in that state until his death, but was not the subject of a commission of lunacy, ordered, after his death, not to be reinvested in or considered as land, but to be paid to his executors. T. L. CROSS, late of Loutn, in the county of Lincoln, miner, by his will dated in 1839, devised his residuary real estate to trustees, in trust, in equal third parts, for his three nieces, the petitioners, for their separate use for life, with remainder for their children in fee; and he bequeathed his residuary personal estate to the petitioners, share and share alike, and appointed them the executrixes of his will. The East Lincolnshire Railway Act was passed in 1846, and the Companies Clauses, the Lands Clauses, and the Railway Clauses Consolidation Acts, were incorporated with it. In November, 1848, at which time Cross had become paralytic and wholly incapable of transacting or even attending to business, the company took possession of part of his land comprised in the residuary devise in his will, for the purposes of their undertaking, and served him with notice, under the 18th section of the Lands Clauses Act, that they were willing to treat for the purchase thereof. No attention was paid to that notice; in consequence of which, the company procured a jury to be summoned to determine the amount of the purchase-money: but *neither Cross, nor any person on his behalf, appeared [*261] on the inquiry before the jury: whereupon the amount 1851. In re The East Lincolnshire Railway Act. of the purchase-money was determined, by a surveyor appointed by two justices of the peace, to be 7401.: and, in April, 1849, the company paid that sum into court, to the credit of Ex parte the East Lincolnshire Railway Company, the account of T. L. Cross, of Louth, in the county of Lincoln, miller.(a) Cross continued in a state of mental imbecility until his death. He died in January, 1850, but without having been the subject of a commission of lunacy. The petition was presented in April, 1850, at which time all the petitioners were married, but only one of them had issue. It stated that the petitioners or their husbands had not settled or agreed to settle their shares of the 740%.; and prayed that one-third part of that sum might be paid to each of their husbands; or, if the court should be of opinion that the 740. was to be considered, in equity, as part of Cross's residuary real estate, then that it might be invested in consols, in the name of the Accountant-General, to the credit of Ex parte the East Lincolnshire Railway Company, the account of the devisees of T. L. Cross, late of Louth, in the county of Lincoln, miller; and that one-third of the dividends might be paid to each of the petitioners, on her separate receipt, till further order.(b) Mr. Bethell and Mr. Shapter, in support of the petition, referred to the 7th, 76th, 77th and 78th sections of the [*262] Lands Clauses Act, and said that, if the owner *of land taken by a company for the purposes of their undertak ing, failed to appear on the inquiry before a jury, the purchasemoney, whatever might be the cause of the owner's default, was to be paid into court under the 76th section; and that the 78th section directed the court to distribute it, as personalty, amongst the parties entitled to it. Mr. Lloyd, for the trustees of Cross's will and the infant children of one of the petitioners, said that Cross was in a state of (a) See Lands Clauses Act, sects. 47, 58, and 76. (b) See sects. 69 and 70. |