1844.-Lewis v. Smith.

in number; two of them are in this country, the other three are abroad.

The two defendants who are here, having answered, have obtained an order of course to dissolve the injunction, unless cause be shown to the contrary.

The order appears to me to be somewhat ambiguously expressed, but I think that I must construe it to be an order to dissolve the injunction as against the defendants upon whose petition it was obtained, unless cause be shown to the contrary.

The plaintiff contends he is not bound to show or to undertake to show any cause, upon the order of two defendants, before the other three have answered.

Beyond all question the general rule is, that the injunction is not to be dissolved till all the defendants have answered, and this being so, it is unusual, and generally useless, for some of the defendants to attempt to dissolve the injunction till all who are injoined have answered.[1]

There are authorities which appear to me to show the mode of proceeding in such cases.

The case of Joseph v. Doubleday,(a) was under the consideration of Lord Eldon, at different times during several. years. There were two sets of defendants comprised [*473] in the injunction, Doubleday aud others, who desired to dissolve the injunction, and Mowbray and others.' In August, 1810, Lord Eldon, upon a special motion made by Doubleday and others, made an order nisi to dissolve the injunction against them. On a motion afterwards made to make that order absolute, and also to dissolve the injunction against Mowbray and others, who had not answered, exceptions to the answer of Doubleday and others were shown as cause, and the usual reference was made to the master.

It was suggested, in the argument for the plaintiff in the present case, that in all such cases, the order nisi ought always to be asked for by special motion; but the proceeding in Joseph v. Doubleday was conducted otherwise.

(a) 1 Ves. & B. 497.

[1] 1 Hoff. Ch. Pract. 360. 1 Barb. Ch. Pract. 639.

1844.-Lewis v. Smith.

Doubleday and others having put in a further answer, obtained, as of course, an order nisi to dissolve the injunction as against them, and in July, 1812, that order was made absolute on the merits. And subsequently, in the year 1816, the answer of Mowbray and others being put in, they obtained an order nisi to dissolve, as of course, and afterwards that order was made absolute and the injunction was dissolved generally.

Again, in Naylor v. Middleton,(b) an injunction being obtained against two, one, on putting in his answer, moved specially to dissolve the injunction as to both. This motion was refused with costs, on the ground that an order nisi was necessary on the behalf of the defendant moving.

[*474] *And in Todd v. Dismor,(a) an injunction was ob tained against three. One having answered, untruly suggested that all had answered, and thereupon obtained an order nisi to dissolve the injunction against all. This was irregular, and the Vice-Chancellor said, one defendant having answered, has a right to move to dissolve the injunction as against himself, but must not in the order nisi suggest, contrary to the fact, that all have answered.

And in the Imperial Gas Light Company v. Clarke and Dixon, (c) Dixon having put in his answer, obtained an order nisi to dissolve the injunction. It was shown, as special cause, that Clarke, in whose name the action was brought, had not put in his answer, but the injunction was dissolved as to Dixon.

These authorities seem to me sufficient to show, that an injunction against several defendants to restrain them from proceedings at law, may be dissolved, as against some of them before all have answered, and that the proper course of proceeding for that purpose is, for those who have answered to obtain an order nisi, and that the plaintiff must thereupon show cause why the order nisi should not be made absolute.

May 8.-On this day, Mr. Kindersley and Mr. James Parker showed cause. They argued that as it appeared from the an

(a) 2 Mad. 131.

(b) 2 S. & St. 477.

(c) Younge, 580.

1844.-Lewis v. Smith.

swer already put in, that the transactions were known to the parties in Sydney alone, to whom the partners in England by their answer referred, the court ought not to dissolve the injunction until the plaintiff *had acquired full information [*475] from the partners in Sydney, who alone were competent to give it.

Mr. Turner and Mr. Lewin, contra, contended that the injunction ought to be dissolved as to the defendants who had answered, especially as it appeared, from the statements in the bill, that the question between the parties was one proper to be determined in a court of law, and that the bill was in fact demurrable.

THE MASTER OF THE ROLLS, under the circumstances, declined to dissolve the injunction.[1]

[1] When the case of those defendants who have not answered is separate and distinct from that of those who have answered, or, in other words, where they are not all implicated in the same charge, there seems to be no reason why those who have fully met the matter exclusively pertinent to themselves, should be compelled to wait upon the movements of those who have nothing to do with it. De Peyster v. Graves, 2 Johns. Ch. Rep. 548. Noble v. Wilson, 1 Paige, 164. So, it is not a valid objection to an application to dissolve an injunction, that the personal representatives of a deceased co-defendant, who was jointly implicated in the fraud charged in the bill, have not answered, unless they are charged with knowledge of the fraud of their testator or intestate. Wakeman v. Gillespy, 5 Paige, 112. And the rule is the same where the parties who have not answered are mere formal parties. Higgins v. Woodward, Hopk. 342. 1 Barb. Ch. Pract. 639.

1844.-Goy inour v. Pigge.

GOYMOUR V. Pigge.

1844: March 19, 20; May 6.

Devise to A. for life, with remainder to her first child and his or her heirs; but if such child should die under the age of twenty-one years without leaving issue, then in like manner to the second, third, and every other child of A.; regard being had to their seniority, and to their respective deaths under age without leav. ing lawful issue; for, in case of issue, it was the testator's will that they should inherit the estate, and he thereby gave the same to him or her, and to his or her heirs accordingly. But in case A. died without leaving issue of her body, or, having issue, such issue should die under the age of twenty-one without leaving issue, then he devised the estate over.

A. never had any issue: Held, that she took a life estate only.

JOSHUA NUNN, by his will, dated in June, 1787, devised the estate in question, which was of copyhold tenure, to his wife Protesia for life. After her decease, he devised the same to his daughter Mary Aun Nunn for life, and from and after her decease, he gave the same to the first child of the body of Mary Ann Nunn, whether male or female, and to his or her heirs or assigns for ever; but if such child should depart this life under the age of twenty-one years, without leaving issue of his [*476] or her body lawfully begotten, then *he devised the es tate to the second child of the body of his said daughter Mary Ann Nunn, and to the heirs and assigns of such second child; and in case the second child should die under the age of twenty-one years, and without leaving issue of his or her body lawfully begotten, then he devised the estate to the third child of the body of his said daughter Mary Ann Nunn, and so on to the fourth, fifth, and all and every other child and children of the body of his said daughter to be begotten as aforesaid, regard being had to the seniority of age and priority of birth of such child and children, and to their several and respective deaths under age, and without leaving lawful issue of their bodies; for, in case of issue, it was the testator's will that such issue should inherit the aforesaid estate, and he thereby gave the same to him, or her, and to his or her heirs accordingly.

But in case his daughter Mary Ann departed this life without leaving issue of her body lawfully begotten, or, having issue,

1844-Goymour v. Pigge,

such issue should die under the age of twenty-one years without leaving issue lawfully to be begotten as aforesaid, then he devised the estate, with the appurtenances, to Mary Ann Goymour for her life, and after her decease he gave the same to Nunn Goymour in fee.

The testator died in 1787; his wife Protesia died in 1801; whereupon the devised estate became vested in the daughter Mary Ann, the wife of the defendant Pigge. She died in 1832, without having had any child; but having in 1816 suffered a customary recovery of the property, under which the defendant claimed. The plaintiff was the heir of Nunn Goymour, to whom the estate was given in fee in the events contemplated by the will; and Mary Ann Goymour, his *mother, having [*477] died in 1801, he by this bill made claim to the estate.

The principal question was, whether Mrs. Pigge was, under the limitations contained in the above will, tenant in tail, or tenant for life only.

Mr. Kindersley and Mr. E. G. White for the plaintiff.

Mrs. Pigge was tenant for life only under the limitations contained in the will. The first limitation is expressly to her "for life." Under the next limitation "to the first child of her body" &c., her children took as purchasers; and there is an executory limitation over to the second child, in case of the death of the first under twenty-one without leaving issue of his body, and similar limitations to the other children.

The subsequent clause is that on which the defendant will rely, namely, "in case his daughter departed this life without leaving issue of her body lawfully begotten, or, having such issue, such issue should die under the age of twenty-one years without leaving issue lawfully to be begotten as aforesaid." In this clause the word "issue" must be construed "children," which has been frequently done in other cases; 2 Powell's Devises, 537, Ginger dem. White v. White,(a) Goodright dem. Docking v. Dunham,(b) Carter v. Bentall.(c) The words "as aforesaid"

(a) Willes, 348.
(b) Douglas, 251.

(c) Beav. 551.